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UNIVERSITY 

OF CALIFORNIA 

LOS ANGELES 



SCHOOL OF LAW 
LIBRARY 



A DIGEST 



LIBEL AND SLANDEE; 

WITH ^^^^cyC ^ <^ ^ f 



THE EVIDENCE, PROCEDURE, AND PRACTICE, 



'/^. 



CIVIL AND CRIMINAL CASES, 



PRECEDENTS OF PLEADINGS. 



W. BLAKE ODGEES, M.A., LL.D. 

LATE SCHOLAR AND LAW STUDENT OF TRINITY HALL, CAMBRIDGE, 
OF THE MIDDLE TEMPLE AND THE WESTERN CIRCtTlt, BARRISTER-AT-LAW. 



'DEAD SCA^TDALS FOKII GOOD SUBJECTS FOR DISSECTIOX.'-Bvrox. 



LONDON: 
STEVENS AND SONS, 119, CHANCERY LANE. 

ITafa |)ublrsljcrs anb ^oohstllus. 
1881. 



T 
Od2SU 



LONDON : 
EHADBtTRY, AONEW, & CO., PRINTERS, WHITEFRIAES. 



TO 



ARTHUR CHARLES, Esq., Q.C, 



RECORDER OF BATH, 



IN ACKNOWLEDGMENT OF MANY KINDNESSES, 



I IDcMcnfc tijis ^ooli. 



8064«7 



PKEFACE. 



This book has been called " A Digest of the Law of Libel 
and Slander," because an attempt has been made to state the 
law on each point in the form of an abstract proposition, citing 
the decided cases in smaller type merely as illustrations of that 
abstract proposition. 

Every reported case decided in England or Ireland during the 
last fifteen years has been noticed. Every case reported in 
England during this century has, I believe, been considered and 
mentioned, unless it has either been distinctly overruled or has 
become obsolete by a change in the practice of the Courts or 
by the repeal of some statute on which it depended. The 
earlier cases have been more sparingly cited, but I think no 
case of importance since 1558 has been overlooked. The 
leading American decisions have also been referred to, and 
whenever the American law differs from our own, the distinction 
has been pointed out and explained. Canadian and Australian 
decisions have als9 been quoted, whenever the English law was 
doubtful or silent on the point. The cases have been brought 
down to the early part of January, 1881. 

It would be of but little use to place all these decisions before 
the reader and leave him to draw his own conclusions. A 
huge collection of reported cases piled one on the top of the 
other is not a legal treatise, any more than a tumbled pile of 
bricks is a house. I have throughout attempted to strike a 
balance, as it were, and state the net result of the authorities. 
But this is a process requiring the greatest care and much 
expenditure of time. When I commenced this book in 1876, 1 



vi PREFACE. 

did not at all realize the amount of labour which was requisite 
in order to ascertain the law and state it clearly in an abstract 
form. 

It is often very difficult to determine whether or no a decision 
has ceased to be a binding authority : our judges in the present 
day seldom expressly overrule a previous decision ; they com- 
ment on it, distinguish it, explain it away, and then leave it 
with its lustre tarnished, but still apparently a binding authority 
should identically the same facts recur. There is no rule which 
decides how long the process of " blowing upon " a case must 
continue before it may be considered overruled. Whenever 
such a case has been cited, I have always referred the reader to 
the places where it has been criticized, adding however my own 
opinion as to the effect of such criticism on the authority of 
the case. And in many places it has been necessary to review 
the cases in a note, showing how they bear one on another, and 
justifying the view which I have taken of their result. Such 
notes are printed in a medium type, smaller than that devoted 
to the abstract proj)ositions of the Digest, larger than the 
Illustrations which follow them. 

In thus ascertaining the principles underlying the various 
decisions, no assistance whatever has been derived from any 
previous book on the Law of Libel and Slander. No such book 
has been written on the same plan. For all conclusions of law 
herein stated, I am, of course, solely responsible. 

My object throughout has been to save the reader trouble. 
All the references to every decision have always been cited. 
All considerations of style, &c., have been sacrificed to clearness 
and convenience. I have abruptly changed from the third to 
the first or second person, whenever there was any possibility 
of mistaking the antecedent of any pronoun. It is sometimes 
difficult to follow A., B., and C, through a long sentence : it is 
easier to distinguish between "I," "you," and "he." Again, 
whenever I have been in doubt whether the law on a particular 
subject should be noticed in one chapter or in another, I have 



PREFACE. vii 

invariably stated it in both. Thus, nearly the whole of the 
chapter on Malice will be found scattered up and down the long 
chapter on Privilege. So, too, for the sake of practical con- 
venience, all the cases as to the Innuendo and the construction 
to be put on Defamatory Words, have been collected in 
Chapter III. In Chapter XII. all the law as to Husband and 
Wife, Principal and Agent, &c., &c., has been gathered together 
under the somewhat stilted but convenient title of The Law of 
Persons. A separate chapter has been devoted to the subject of 
Costs. In the chapters on Blasphemous and Seditious Words, 
I have not hesitated to express freely my conviction that many 
of the early decisions would not be followed in the present day. 
One difficulty connected with the subject-matter of the book 
I have endeavoured to avoid, by restoring the word " malice " 
to its simple and ordinary meaning. The distinction between 
"malice in law" and "malice in fact" is of comparatively 
recent origin. " Malice in law " is the vaguest possible phrase ; 
it merely denotes " absence of legal excuse." The plaintiff is 
never called on to prove the existence of "malice in law ; " the 
defendant has to show the existence of some legal excuse. In 
short, to say that a libel must be published " maliciously," 
means merely that it must be published " on an unprivileged 
occasion." I have therefore abandoned this technical and ficti- 
tious use of the word. Throughout this book (to use the words 
of Brett, L.J., in Clavk v. Molyneux, see p. 266) "'Malice' 
does not mean ' malice in law,' a term in pleading, but actual 
malice, that Avhich is popularly called malice." 

The second part of the book is devoted to Practice, Pro- 
cedure, and Evidence. I have fought both a civil action and a 
criminal trial through from beginning to end, giving practical 
hints to each side. Chapter X. is in short a manual of the 
practice in an action of tort under the Judicature Act. I have 
taken up the subject at an earlier point than is usual in law 
books, and have submitted to the plaintiff certain matters which 
he should carefully consider before he issues his writ (p. 449). 



preface: 



In the Appendix will be found a full collection of Precedents 
of Pleadings, both in Civil and Criminal cases. Some are drawn 
from the reports ; others are hypotlietical cases of my own in- 
vention ; but the majority are pleadings in actions in whicli 
friends of mine, or I myself, have been professionally engaged. 

In June, 1880, appeared the Report of the Select Committee 
of the House of Commons appointed to inquire into the Law of 
Newspaper Libel. X have ventured to deal seriatim, with the 
three recommendations contained in this Eeport, and to express 
my opinion thereon (pp. 261, 391, 531). A copy of the Report 
will be found in Appendix B. (p. GG2). 

In conclusion, I have to acknowledge my great obligation to 
my learned friend, Mr. Wurtzburg, of Lincoln's Inn, who has 
kindly revised the proofs of this book, added all the references 
to the various reports, and prepared the elaborate Table of Cases 
at the commencement of the volume. 



W. Blake Odgers. 



5, Hake Couut, Temple, E.C. 
February, 1881. 



TABLE OF CONTENTS. 

PAGE 

TABLE OF CASES xix— Ixvi 

TABLE OF STATUTES CITED Ixvii— Ixix 

TABLE OF RULES AND ORDERS CITED .... Ixx— Ixxii 



PART I. 

A DIGEST OF THE LAW OF LIBEL AND SLANDER. 

— ♦ 

CHAPTER I. 

INTRODUCTORY 1—16 

Definitions 1 

Distinction between Libel and Slander 3 

Motive Immaterial, save on the Question of Damages ... 5 

Acts injurious to Reputation 8 

" Liberiy of the Press " defined 10 

History of the Censorship of the Press . ib. 

Injunction to Restrain a Libel will not be granted .... 13 



CHAPTER II. 

DEFAMATORY WORDS 17—92 

Definitions 17 

Injury to the Reputation the gist of the Action 18 

PART I.— LIBEL. 

Libel defined 21 

Libels on Persons in Office 27 

I>ibols on Professional Men 29 

Libels on Traders ........... 30 

Libels on Tradcra' goods 32 



TABLE OF CONTENTS. 

PACE 

Fair and Jo ?«a^r7c Comment on Matters of Public lutercst . . . 31 

Criticism defined and distinguished from Defamation ... 36 

Malicious and Unfair Attacks ......... 38 

What are Matters of Public Interest "ll 

AfEairs of State i2 

Administration of Justice ii 

Public Institutions and Local Authorities . . . . . . i6 

Ecclesiastical Affairs .......... 47 

Books, Pictures, &c. ..." -48 

Theatres, Concerts and other Public Entertainments . ... 49 

Other Appeals to the Public 50 

PART II.- SLANDER. 

I. Words imputing an Indictable Offence 54 

Early Cases on this Subject ........ 58 

The Charge must be Specific and Precise 60 

The Crime imputed must be possible 61 

II. Words imputing a Contagious Disease G2 

III. Words spoken of the Plaintiff in the ^vay of his Office, Profession 

or Trade 01 

Such Words must affect him in such Ofiice, Profession or Trade . 65 

Imputation of Professional Ignorance or Unskilfulness . . 67 
Plaintiff must be cariying on such Trade, &c. at the time he is 

Defamed 69 

Words imputing Want of Integrity to any one holding an Office 

of Trust 70 

Words concerning Clergymen 72 

Words concerning Barristers, Solicitors, &c. .... 71 

Words concerning Physicians and Surgeons . . . . . 75 

Words affecting Traders in the way of their Trade . . .77 

Imputations of Insolvency ........ 78 

Imputations of Dishonesty and Fraud in the Conduct of their 

Trade 79 

IV. Words Actionable only by reason of Special Damage ... 82 
Words imputing Immorality . ....... 83 

Words imputing Unchastity ........ 84 

Unsatisfactory State of the Law on this point 86 

All Words causing Special Damage are Actionable ... 87 



CHAPTEE III. 

CONSTRUCTION AND CERTAINTY 93—132 

WTiat Meaning the Speaker intended to convey is immaterial . . 93 

Libel or no Libel is a question for the Jury 94 

Duty of the Judge 91 

Words not to be construed in mitlori sensn 95 

Jury to consider the Words as a whole 98 

AVhen Evidence may be given of other Defamatory Puljlications by 

Defendant of Plaintiff 99 



TABLE OF CONTENTS. xi 

PAGE 

Of the Innuendo 100 

The Words must be set out vcrhatim in the Statement of Chiim . 101 

1. Words clearly Defamatory 105 

2. Words ^;ru«rt./rtc/6' Defamatory 107 

3. Neutral Words 109 

4. Words j}rimd facie Innocent 112 

5. Words clearly Innocent 116 

Certainty. Early Technicalities 118 

Certainty of the Imputation 120 

Criminal Charges . . . 121 

Indirect Imputations 125 

Certainty as to Person Defamed 127 



CHAPTER IV. 

SCANDALUM 31AGJVATUJI 133—136 

Statutes 133 

What Words are included therein 135 



CHAPTER V. 

SLANDER OF TITLE, OR WORDS CONCERNING THINGS . 137—149 

Definition 137 

I. Slander of Title proper 138 

Actionable, if yvords false and inalicioK.i, and if fij)ccial damage be 

proved ib. 

Proof of Malice 142 

II. Slander of Goods Manufactured or Sold by another . . . 145 

Other Words producing Special Damage 148 



CHAPTER YI. 

PUBLICATION 150—168 

Definition of 150 

Plaintiff must Prove a Publication by the Defendant in fact . . 153 

Publication ^>(er aZM/7?t .......... 155 

Publication in a Newspaper 157 

Repetition of a Slander 161 

Naming your Authority now no Defence ...... 162 

Rule that every one Repeating a Slander becomes an Independent 

Slanderer 166 

Exceptions to this Rule 167 



xii TABLE OF CONTENTS. 

CHAPTER VII. 

PAGE 

JUSTIFICATION 169—181 

Onus of Proving AVords tnie is on the Defendant 169 

The whole Libel must be Proved true H- 

The Rule applies to all Eeported Speeches or Eepetitions of Slander 173 

Justification must be Specially Pleaded 177 

Justification in a Criminal Case 178 

Roman Law as to Truth of Libel 180 



CHAPTER YIII. 

PRIVILEGED OCCASIONS 182—263 

Defence that Words were spoken on a Privileged Occasion . . . 182 

Occasions Absolutely Privileged 183 

Occasions in which the Privilege is Qualified . . . . . . ib. 

The Judge to Decide whether Occasion is Privileged or not . . 185 

PART I. 

OCCASIONS ABSOLUTELY PRIVILEGED 185—196 

(i) Parliamentary Proceedings ........ 186 

(ii) Judicial Proceedings ......... 188 

Words Spoken by a Judge if>. 

Words Spoken by Counsel 190 

Words Spoken by a Witness . . . . . . . . 191 

(iii) Naval and Military Affairs 194 

PART II. 

QUALIFIED PRIVILEGE 196—263 

Cases of Qualified Privilege classified 196 

I. Wheee circumstances cast upox the Defendant the 

DUTY OF Making a Communication. 

A. Commvnications made in pvrsvaiice pf fi Dvti/ C7ird to Society . 198 

Duty may be Moral or Social . . ib. 

(i) Characters of Servants ....... 200 

(ii) Other Confidential Communications of a Private Nature. 

(«) Answers to Confidential Inquiries . . . . 203 

(5) Confidential Communications not in answer to a 

previous Inquiry . . . . . .207 

(c) Communications made in discharge of a duty 
arising from a Confidential Relationship exist- 
ing between the parties 209 

(r/) Information volunteered wlscn there is no Con- 
fidential Relationship existing between the 

Parties 213 

Difficulty of ilic Question 215 



TABLE OF CONTENTS. xiii 

PAor: 
(iii) Information given to any Piiblin OJiccr iraputiag Crime 

or Misconduct to otliers 220 

Such Officer must have some Jurisdiction to entertain 

Complaint 223 

B. Communlcatloiis made in Self- Defence. 

(iv) Statements necessary to protect Defendant's private 

Interests 225 

(v) Statements provolsed by a previous attack })y riaiutifE 

on Defendant 228 

Statements invited by tlic rhiintili" 230 

II. Wheke the Defendant has an Interest in the Subject- 
matter OF THE Communication, and the Person to 
WHOM THE Communication is made, has a Correspond- 
ing Interest 233 

Where a large Bod}'- of Persons are interested .... 237 
If Strangers present, the Privilege will be lost . . . . 239 

III. Privileged Reports. 

(i) Reports of Judicial Proceedings 243 

Matters coram nonjudicc ....... 2-14: 

Reports not privileged ....... 249 

Reports must be accurate ....... 250 

No Comments should be interpolated .... 254 

An accurate Report ina.y still be malicious . . . 256 

(ii) Reports of Parliamentary Proceedings .... 257 

(iii) Other Reports 259 

Suggestion of the Select Committee of the House of 

Commons 261 



CHAPTER IX. 

MALICE 264—288 

Intention of Defendant as a rule immaterial 264 

Material when the Occasion is one of Qualified Privilege . . . 266 

Onus of i^roving Malice lies on the Plaintiff ..... 269 

I. Extrinsic Evidence of Malice 271 

Former publications by Defendant of Plaintiff .... 272 
That the Words are false is alone no evidence of Malice . . . 274 
II. Evidence of Malice derived from the Mode and Extent of Publi- 
cation, the Terms employed, &c. 277 

(i) Where the Expressions employed are exaggerated and 
unwarrantable ; but there is no other Evidence of 

Malice 279 

(ii) Wliere the Mode and Extent of Pu};lication is Exces- 
sive 282 

Communicatidns vohmtccred ...... 286 



xiv TABLE OF CONTENTS. 

CHAPTER X. 

PAGE 

DAMAGES 289—333 

General and Special Damage Defined and Distinguished . . . 289 

I. General Damages 291 

General Loss of Custom 293 

II. Evidence for tJw Plaintiff in Aggravation of Damages. 

(i) Malice 296 

(ii) Extent of Publication 298 

(iii) PlaintifE's Good Character il. 

III. Evidence for the Defendant in Mitigation of Damages. 

(i) Apology and Amends 299 

(ii) Absence of Malice 301 

Conflicting Cases on this Point 303 

(iii) Evidence of the Plaintiff's Bad Character , , . 304 

(iv) Plaintiff's previous Conduct in provoking the Publication 306 

(v) Absence of Special Damage 308 

IV. Sj)ecial Damage where tJie ivoi'ds are 7iot actionable per se , . ib. 

What constitutes Special Damage 309 

Special Damage must be specially pleaded 313 

Special Damage subsequently arising 317 

v. Sj)eclal Damage where the words are actionable per se . . . 318 

YI. Remoteness of Damages 321 

Damage resulting to the Husband of the Female Plaintiff . . 323 

Damage caused by the act of a Third Party 325 

Not essential that such Third Person should believe the Charge . 327 
Wrongful and Spontaneous Act of a Third Person . . . . 328 
Originator of a Slander not liable for Damage caused by its repe- 
tition 329 

Exceptions to this Rule 331 

CHAPTER XI. 

COSTS 33i— 343 

Costs now fol]o\Y the Event 334 

All early Statutes as to Costs repealed by Judicature Act . . . 335 

Application to deprive succeGsfi;l Plaintiff of Costs . . . . 336 

Costs of New Trial 338 

Apportionment of Costs of Issues ib. 

Costs after Payment in Court 340 

Costs of Counterclaim 341 

Costs in Criminal Proceedings 343 

CHAPTER XIT. 

THE LAW OF PERSONS IN BOTH CIVIL AND CRIMINAL CASES 

344—372 

1. Husband and Wife 345 

Claim by Husband for Words defamatory of Wife. . . . 347 

i\Iarried Woman Defendant 350 

Criminal Liability of a Married Woman 351 



TABLE OF CONTENTS. 



2. Infants 352 

3. Lunatics ............ 353 

4. Bankrupts ............ 3.54 

.5. Receivers 355 

6. Executors and Administrators . . . . , . . , ib. 

7. Aliens 356 

8. Master and Servant— Principal and Agent 358 

Master's Commands no Defence ....... 359 

Principal liable for Words spoken by his Authority . . . , 360 

Ratification 361 

Criminal Liability of Master or Principal 362 

9. Partners 365 

10. Corporations and Companies ........ 367 

11. Other Joint Plaintiffs 369 

12. Joint Defendants 37O 



CHAPTER XIII. 

CRIMINAL LAW 373—393 

Illegality of Contracts as to Libellous Matter 374 

I. Criminal Remedy by Indictment 375 

^Special Intent, when necessary 376 

Punishment at Common Law ....... 378 

Statutes . . . 397 

II. Criminal Remedy by Information 380 

Libels on Foreign Ambassadors, &c. 383 

III. Law Common to all Criminal Cases n^ 

Publication of a Libel by one unconscious of its Contents . . 384 

Criminal Liability of an Emialoyer ...... 385 

Justification not permitted at Common Law 388 

Justification under Lord Campbell's Act 389 

Considerations as to Criminal Proceedings for Libel ..... 390 

Suggestion of the Select Committee of the House of Commons . . . 391 



CHAPTER XIV. 

BLASPHEMOUS WORDS 394—403 

Blasphemous Words defined 394 

Intent to bring Religion into Contempt ... ... 395 

Honest Advocacy of Heretical Opinions 396 

Justification not allowed 398 

Statutory Provisions 4OO 

Jurisdiction of Ecclesiastical Courts 402 



CHAPTER XV. 

OBSCENE WORDS 404—408 

Test of Obscenity 404 

Siunmary Proceedings under 20 & 21 Vict. c. 8.") 405 



TABLE OF CONTENTS. 



CHAPTEE XYT. 

SEDITIOUS WORDS 

Seditious Words defined ..... 
Treasonable Words ..... 
Words Defamatory of the Sovereign himself . 

Truth no Defence 

Words Defamatory of the King's Ministers 
Words tending to Subvert the Government . 
Words Defamatory of the Constitution . 
Latitude allowed to Political Writer's . 
AVords inciting to DisafEection and Riot . 
Words Defamatory of either House of Parliament 
Commitment for Contempt ..... 

Colonial Legislative Bodies 

Words Defamatory of the Superior Courts of Justice 
Contempt of Court ...... 

Wilful Disobedience to an Order of Court 
Attachment and Committal ..... 

Colonial Courts of Justice 

Words Defamatory of Inferior Courts of Justice , 
Contempt of an Inferior Court of Record 
Sureties for Good Behaviour .... 
Statutory Powers of Inferior Courts 
Ecclesiastical Courts 



PAGE 

409—448 

. . 409 

. 410 

. . 413 

. 414 

. . 415 

. 418 

. . 419 

. 420 

. . 421 

422 

. . 423 

. 425 

, . 42<] 

. 428 

. . 431 

. 433 

. . 438 

. 440 

. . 442 

. 444 

. . 445 

. 448 



PART II. 

PRACTICE, PROCEDURE, AND EVIDENCE. 



CHAPTEK XVII. 

PRACTICE AND EVIDENCE IN CIVIL CASES .... 449—570 

Considerations before Writ 449 

Parties 452 

Letter before Action ; Notice of Action ....... 453 

Choice of Coiu-t ih. 

District Registry 454 

Statute of Limitations 455, 490 

Former Proceedings 456 

Joinder of Causes of Action ......... 458 

Endorsement on Writ . . . ' 459 

Service of the Writ 400 

Appearance . 4()2 

Judgment by Default 403 

Matters to be considered by the Defendant . . . . . . 405 

Security for Costs 406 

Remitting the Action to the County Court . . . . . . 408 



TABLE OF CONTENTS. xvii 



PAGE 



Statement of Claim 



Veime 



474 



Instractioas for Statement of Defence ■^'^S 



Demurrer ....••••••• 

479 



Statement of Defence- '*^^ 

481 
Traverses ....•••••■••' 

Bond fide Comment. No Libel 



484 
Justification . 



Privilege 

. 485 



Apology J^^ 

Accord and Satisfaction . 40 

Previous Action 

Other Defences ^ ' 

491 
Payment into Court 

Counterclaims 

Judgment in Default of Fleadiny: ^^'^ 

l'^'\,- .'.' .'.%l 

Itejuinder .....•••••• 

Amendment of Pleadings . . . • , ■ • • • • * • 

Default in Pleading ^^ 

Interrogatories ^ " 

• fiOQ 

Striking out Interrogatories 

■ "ill 

Answers to Interrogatories 

Further and Better Answers °'^'* 

Discovery of Documents . . • • J- ' 

Further and Better Affidavit ^^^ 

Inspection of Documents 

Default in making Discovery °f ^ 

Notice of Trial. Entry for Trial *^- 

Advice on Evidence 

Examination of Witnesses before Trial ^-° 

o • 1 T ... 528 

bljecial Jury 

Change of Venue ^ ' 

Trial f^ 

Proof of the riaiutiff's Special Character oovj 

Proof of Publication ... ^^^ 

Proof of the Libel ^^^ 

Proof of the Speaking of the Slander ^37 

Evidence as to the Innuendo °^° 

Proof that the Words refer to the Plaintilf 540 

Proof that the Words were spoken of the Plaintiff in the way of his 

Office, Profession, or Trade ^^^ 

Evidence of Malice , • 

542 

Evidence of Damage ^ 

Nonsuit _ 

Evidence for the Defendant ^1° 

"Withdrawing a Juror ""^ 

Summing-up 

^''^"^ict 

Judgment 

b 



xviii TABLE OF CONTENTS. 

PAGE 

Costs 553 

Proceedings after Judgment ooi 

Application for a New Trial 556 

Proceedings in the Court of Appeal 561 

County Court Proceedings 5Go 

Other Inferior Courts 569 

CHAPTER XVIII. 

PRACTICE AND EVIDENCE IN CRIMINAL CASES . . 571—596 

PART I. 

PRACTICE AND EVIDENCE IN CRIMINAL PROCEEDINGS BY 

WAY OF INDICTMENT 571—591 

Proceedings before Magistrates 571 

Indictment 574 

Pleadmg to the Indictment 576 

Certiorari 578 

Evidence for the Prosecution 580 

Evidence for the Defence 582 

Summing-up and Verdict 585 

Proceedings after Verdict i^- 

Sentence 589 

Costs 590 

PART II. 

PRACTICE AND EVIDENCE IN PROCEEDINGS BY WAY OF 

CRIMINAL INFORMATION 591—596 

Motion for the Rule 591 

Ai'gument of the Rule 593 

Compromise ............ 594 

Trial and Costs 595 



APPENDICES. 

A. APPENDIX OF PRECEDENTS OF PLEADINGS, ETC. . 596—661 

Contents 596 

I. Precedents of Pleadings in Actions for Libel ... . . ("00 

II. Precedents of Pleaduigs in Actions of Slander .... 621 

III. Precedents of Pleadings in Actions of Slander of Title . . . 634 

IV. Forms of Pleadings, Notices, &c., in the County Court . . 644 
V. Precedents of Criminal Pleadings 649 

B. REPORT FROM THE SELECT COMMITTEE OF THE HOUSE 

OF COMMONS ON THE LAW OF LIBEL . . . .662 

C. APPENDIX OF STATUTES 064—683 

Contents 664 



GENERAL INDEX 685—748 



TABLE OF CASES. 



Abu— Ann. page 

• V. Moor, 1 M. & S. 284 305 

Abud V. Eiches, 2 Ch. D. 528 ; 45 L. J. CL. 649 ; 24 W. E. 037 ; 34 

L. T. 713 . . . . 434 

Adams v. Kelly, Ey. & Moo. 157 . . . 155, 333, 533, 535, 538 

V. Meredew, 2 Y. & J. 417 ; 3 Y. & J. 219 . . . . 104 

t;. Elvers, 11 Barbour (N. Y.)Eep. 390 83 

Adlam v. Colthurst, L. E. 2 Adm. & Eccl. 30 ; 3G L. J. Ec. Ca. 14 

433, 447 

Aish V. Gerish, 1 EoU. Abr. 81 131 

Aldiich V. Press Printing Co., 9 Min. 133 368 

Alexander v. Angle, 4 M. & P. 870 ; S. C. sah tiom. Angle v. 

Alexander, 7 Biug. 119 ; 1 Tyr. 9 ; 1 C. & J. 143 . 66, 

78, 103, 120, 295 

V. North Eastern Ev. Co., 6 B. & S. 340 ; 34 L. J. Q. B. 152 ; 

11 Jur. N. S. 6^9 ; 13 W. E. 651 . . . .170, 173, 

253, 368, 497, 498, 549 
Alfred v. Farlow, 8 Q. B. 854 ; 15 L. J. Q. B. 258 ; 10 Jur. 714 . . 56, 

60, 123 
Allardice v. Eobertson, 1 Dow X. S. 514 ; 1 Dow & Clark, 495 ; 6 
Sh. & Dun. 242 ; 7 Sh. & Dun. 691 ; 4 Wils. & Sh. App. Ca.«. 

102 190 

Allen V. Eaton, 1 Eoll. Abr. 54 76 

Alleston v. Moor, Hetl. 167 ....... 71, 75 

Allliuseu V. Laboucliere, (C. A.) 3 Q. B. D. 654; 47 L. J. Ch. 819; 48 

L. J. Q. B. 34 ; 27 W. R. 12 ; 39 L. T. 207 . . . 505, 510, 511 
Allsop & wife V. Allsop, 5 H. & N. 534 ; 29 L. J. Ex. 315 ; 6 Jur. N. 

S. 433 ; 8 W. E. 449 ; 36 L. T. Old S. 290 86, 312, 323, 325, 349 

Aniann v. Dauim, 8 C. B. N. S. 597 ; 29 L. J. C. P. 313 ; 7 Jur. 

N. S. 47 ; 8 W. R. 470 217, 218, 220, 225, 475 

Anderson v. Bank of British Columbia, (C. A.) 2 Ch. D. 644; 45 L. J. 

Ch. 449 ; 24 W. E. 724 ; 35 L. T. 76 . . . 516, 517 

V. Dunn, 6 Wheat. 204 424 

V. Hamilton, 2 Brod. & B. 156, n 536 

Andres v. Wells, 7 Johns. (N. York) 260 362 

Andrews, Ex parte, In re Fells, 4 Ch. D. 509 ; 46 L. J. Bkcy. 23 ; 25 

^V. R. 382 ; 36 L. T. 38 " . . 431 

V. Chapman, 3 C. &: K. 286 251, 255 

Angle V. Alexander, 7 Bing. 119 ; 1 Tyrw. 9 ; 1 C. & J. 143 ; 4 M. & 

P. 870 66, 78, 103, 120, 295 

Annison v. Blofield, Carter, 214 ; 1 Eoll. Alir. 55 . . . .75, 111 

xix h 2 



Ano— Ayr. TABLE OF CASES. 

PAGE 

Auon., 2 Barnard. 138. See K. \\ Csborii 381 

'llxMod.99 22,24,104 

1 lloU. Abr. 82 102 

1 Roll. 746 96 

Cro. Eliz. 643 ^o 

3 Leon. 231 ; 1 Roll. Abr. 65 60, 122 

Holt, 652 126 

1 Roll. Abr. 37 139 

1 Roll. Abr. 81 130 

60 N. Y. 262 . . 328 

(1596) Moo. 459 -1-2 

■ (1638) Cro. Jac. 516 "-^ 

(1650) Stvle, 251 -l-^l 

(1696) 2 ,Salk. 644 558 

Stvle, 392 -^"2, 575 

[j^ar Lush, J.) 1 Charley, 100 ; Bitt. 4 ; 20 Sol. J. 32 ; 60 L. T. 

Notes, 32 501 

(mr Lush, J.) 1 Charley, 109 ; Bitt. 24 ; 60 L. T. Notes, 66 . 519 

(jjer Quain, J.) 1 Charley, 119 ; Bitt. 53 ; 60 L. T. Notes, 103 . 528 

Anstey v. N. & S. Woolwich Subway Co., 11 Ch. D. 439 ; 48 L. J. Ch. 

776 ; 27 W. R. 575 ; 40 L. T. 393 515 

Anthony I'. Halstead, 37 L. T. 433 557 

Ar>plel>y v. Waring, 15 L. J. Notes of Cases, 1880, p. 125 . . . 520 
Archboid v. Sweet, 1 Moo. & Rob. 162 ; 5 C. & P. 219 .. . 29 

Armitage v. Dunster, 4 Dougl. 291 537 

V. Fitzwilliam and others, W. N. 1876, p. 56 ; Bitt. 126 ; 

20 Sol. J. 281 ; 60 L. T. Notes, 251 . . . .503 

Armstrong v. Lewis, 2 Cr. & M. 274 551 

Arney. Johnson, 10 Mod. Ill 65,79,115 

Arnold v. Clifford, 2 Sumner, 238 374 

Ashley v. Harrison, Peake, 256 ; 1 Esp. 48 . . . 293, 314, 319, 322 

r. Taylor, 37 L. T. 522 ; (C. A.) 38 L. T. 44 . . . . 506 

Ashworth V. Outram, 9 Ch. D. 483 ; 27 W. R. 98 ; 39 L. T. 441 

337, 565 
Asquith V. Molineux, 49 L. J. Q. B. 800 ; W. N. 1880, p. 156 . . 524 
Astley (Sir John) %\ Younge, 2 Burr. 807 ; 2 Ld. Ken. 536 . 192, 193 

Aston V. Blagrave, 1 Str. 617 ; 8 Mod. 270; Fort. 206; 2 Lord Raym. 

1369 . . 69, 71 

Atherley v. Harvey, 2 Q. B. D. 524 ; 46 L. J. Q. B. 518 ; 25 W. R. 

727 ; 36 L. T. 551 505 

Atkins %. Perrin, 3 F. & F. 179 144 

Atkinson v. Fosbroke, L. R. 1 Q. B. 628 ; 35 L. J. Q. B. 182 ; 12 Jur. 

N. S. 810 ; 14 W. R. 832 ; 14 L. T. 553 . . . . 470, 503 

Atthill V. Soman, 15 L. T. 36 295 

Attorney-General v. Le IMerchant, 2 T. R. 201 n 581 

I'. Siddon, 1 Cr. & Jer. 220 364 

of New South Wales v. Macpherson, L. R. 3 P. C. 

268 ; 7 Moo. P. C. (N. S.) 49 ; 39 L. J. P. C. 59 . . . . 425 
Augustinus v. Nerinckx, (C. A.) 16 Ch. D. 13 ; 43 L. T. 458 . . 506 
Austin (Sir J.) v. Culpepper, 2 Show. 313 ; Skin. 123 . . . . 8, 22 
Axmann v. Lund, L. R. 18 Ec|. 330 ; 43 L. J. Ch. 655 ; 22 W. R. 

789 144 

Ayre v. Craven, 4 N. & M. 220 ; 2 A. & E. 2 . . 66, 76, 77, 84, 541 



TABLE OF CASES. Baa— Bea. 

PAGE 

Baal v. Baggerley, Cro. Car. 326 ...... 55, 122 

Baboneaii v. Farrell, 15 C. B. 360 ; 24 L. J. C. P. 9 ; 3 C. L. R. 42 ; 1 

Jur. N. S. 114 80, 114 

Ba.-g's Case, 11 Rep. 93, 95 ; 1 Rolle Rep. 79, 173, 224 .. . 441 

Baiiibridge v. Lax, 9 Q. B. 819 489 

Baker v. Lane, 3 H. & C. 544 ; 34 L. J. Ex. 57 ; 13 W. R. 293 ; 11 

L. T. 638 • 504 

. . V. Morfue vd Morpliew, Sid. 327 ; 2 Keble, 202 . . . 68, 75 

V. Newton, W. N. 1876, p. 8 ; 1 Charley, 107 ; Bitt. 80 ; 20 Sol. 

J. 177 ; 60 L. T. Notes, 157 507 

— V. Oakes, (C. A.) 2 Q. B. D. 171 ; 46 L. J. Q. B. 246 ; 25 W. R. 

220; 35 L. T. 832 336 

V. Pierce, 2 Ld. Raym. 959 ; Holt, 654 ; 6 Mod. 23 ; 2 Salt. 

695 18, 55, 61, 122 

Baldwin v. Elphinston, 2 W. Bl. 1037 .... 152^ 157, 472, 532 

^. Flower, 3 Mod. 120 ' • .350 

BaU V. Roane, Cro. Eliz. 308 119 

Banister v. Banister, 4 Rep. 17 139, 143 

Bank of Australasia v. Hardinc;, 9 C. B. 661 ; 19 L. J. C. P. 345 . . 439 

V. Nias, 16 Q. B. 717 ; 20 L. J. Q. B. 284 . . 439 

Bank of British North America v. Strong, 1 App. Gas. 307 ; 34 L. T. 

627 191, 228 

Banke'suAllen, Roll. Abr. 54 74 

Barbaud v. Hookham, 5 Esp. 109 238 

Barbara's Case, 4 Rep. 20 ; Yelv. 21 103 

Barmund's Case, Cro. Jac. 473 85, 311 

Barnabas v. Trannter, 1 Yin. Abr. 396 ... . 59, 311, 325 
Barnes v. Hollowav, 8 T. R. 150 537 

V. Prudlin," or Bruddel, 1 Sid. 396 ; 1 Yentr. 4 ; 1 Lev. 261 ; 

2Keb. 451 312,316 

Bamett v. Allen, 3 H. & X. 376 ; 27 L. J. Ex. 412 ; 1 F. & F. 125 ; 

4Jur.N.S.488 . . : 24,61,83,539 

Barratt v. Collins, 10 Moo. 451 370 

Barrett v. Long, 3 H. L. C. 395 ; 7 Ir. L. R. 439 ; 8 Ir. L. R. 331 

272, 276 

Barrens v. Ball, Cro. Jac. 331 .• ^i^ 

Barrow v. Lewellin, Hob. 62 ...... • 150, 151 

Barry v. Barclay, 15 C. B. X. S. 849 527 

V. M'Grath, Ir. R. 3 C. L. 576 301, 493 

Bartlett v. Lewis, 12 C. B. N. S. 249 ; 31 L. J. C. P. 230 . . . 504 
Barwell v. Adkins, 1 M. & G. 807; 2 Scott, N. R. 11 . . 274, 276 

Barwis v. Keppel, 2 Wils. 314 195 

Bash V. Somner, 20 Penns. St. R. 159 350 

Bassell v. Elmore, 48 N. Y. R. 563 ; 65 Barb. 627 316 

Bateman d ux. v. Lvall d ux., 7 C. B. N. S. 638 . . .315, 330, 543 
Bathurst v. Coxe, llveb. 451, 465 ; Sir T. Raym. 68 . . . . 440 

V. Kearslev, 13 Yes. 494 14 

Baylis v. LawTence,''ll Ad. & E. 920 ; 3 P. & D. 526 ; 4 Jur. 652 

94, 265, 550 

Beach v. Rannev, 2 Hill (X. Y.), 309 312 

Beach d ux. v. Beach, 2 Hill (N. Y.), 260 ... • 349, 490 

Beamond v. Hastings, Cro. Jac. 240 71 

Beatson v. Skene, 5 H. & N. 838 ; 29 L. J. Ex. 430 ; 6 Jur. N. S. 780 ; 

2 L. T. 378 204, 206, 519, 545 

Beaumont v. Barrett, 1 Moore, P. C. C. 76 . . . • 425, 426 

xxi 



Bed-Bla. TABLE OF CASES. 

PAGE 

Beclilin-lon v. Beadm^ton, 1 V. D. 426 ; 45 L. J. P. D. 44 ; 24 W. E. 

348 ; 34 L. T. 366 357 

Bedwell V. Wood, 2 Q. B. D. 626; 25 W. R. Dig. 188; 36 L. T. 213 . 337 
Behrens^ v. Allen, 3 F. & F. 135 ; 8 Jnr. N. S. 118 . . . 171, 486 

Bell V. Byrne, 13 East, 554 125, 471, 536 

V. Midland Eailwav Co., 10 C. B. N. S. 287 ; 30 L. J. C. P. 273 ; 

9 ^Y. R. 612 ; 4 L. T. 293 83, 292 

V Parke, 10 Ir. C. L. R. 279 ; 11 Ir. C. L. R. 413 207, 238, 305, 306 

V. Stone, 1 B. & P. 331 22 

1'. Wilkinson and another, (C. A.) 26 W. R. 275 ; W. N. 1878, 

p. 3 . . . 478 

Bellamy v. BurcL, 16 M. & W. 590 64, 81 

Benbow v. Low, 13 Ch. D. 553 ; 49 L. J. Ch. 259 ; 28 W. R. 384 ; 42 

L. T. 14 498 

Bendislit'. Lindsay, 11 Mod. 194 5,6 

Bennett v. Barry, 8 L. T. 857 236 

V. Bennett, 6 C. & P. 586 302 

V. Deacon, 2 C. B. 628 ; 15 L. J. C. P. 289 . . 215, 218 

Bennett et ux. v. Watson and another, 3 M. & S. 1 . . . . 447 

Benson v. Flowers, Sir W. Jones, 215 . . . . . . . 354 

Berdan v. Greenwood and another, 3 Ex. D. 251 ; 47 L. J. Ex. 628 ; 

26 W. R. 902 ; 39 L. T. 223 . . . 301, 480, 492, 493, 494 
Berkeley v. Standard Discount Co., (interloc.) 9 Ch. D. 643 ; 26 W. R. 

852 502 

12 Ch. D. 295 ; 48 L. J. Ch. 797 ; 

27 W. R. 852 ; 41 L. T. 29 501 

(C. A.) 13 Ch. D. 97 ; 49 L. J. Ch. 

1 ; 28 W. R. 125 ; 41 L. T. 374 501 

Bcrrynian v. Wise, 4 T. R. 366 69, 530 

Besant v. Wood, 12 Ch. D. 605 ; 40 L. T. 445 553 

Bickford v. Darcev and Beachey, L. R. 1 Ex. 354 ; 14 W. R. 900 ; 14 

L. T. 629 ' 504 

Biddulph V. Charaberlayne, 17 Q. B. 351 177, 340 

Biggs V. Great Eastern Railway Co., 16 W. R. 908 ; 18 L. T. 482 173, 253 
Bignell v. Buzzard, 3 H. & X. 217 ; 27 L. J. Ex. 355 . . . . 31 
Bigsfcy V. Dickinson, (C. A.) 4 Ch. D. 24 ; 46 L. J. Ch. 280 ; 25 W. R. 

89, 122 ; 35 L. T. 679 564, 565 

Bill V. Neal, 1 Lev. 52 69, 71 

Birmingham Estates Co. v. Smith, 13 Ch. D. 506 ; 49 L. J. Ch. 251 ; 

28V. R. 666 ; 42 L. T. Ill 495 

Bishop, In re, Ex parte Smith, 13 Ch. D. 110 ; 49 L. J. Bkcy. 1 ; 28 

W. R. 174 ; 41 L. T. 388 432 

Bishop V. Latimer, 4 L. T. 775 .... 30,75,99,172,256,486 
Bishops' (Tlie Seyen) Case, 4 St. Tr. 300 .... 534, 581 

Bittridge's Case, 4 Rep. 19 99, 109 

Black V. Hunt, 2 L. R. Ir. 10 61, 82 

Blackburn v. Blackljurn, 4 Bing. 395 ; 1 M. & P. 33, 63 ; 3 C. & P. 

146 .... '. 264 

Blackham v. Pugh, 2 C. B. 611 ; 15 L. J. C. P. 290 . 145, 226, 235 

Blackman v. Bryant, 27 L. T. 491 61, 82, 111 

Blades V. Lawrence, L. R. 9 Q. B. 374 ; 43 L. J. Q. B. 133 ; 22 W. R. 

643 ; 30 L. T. 378 567 

Blagg V. Sturt, 10 Q. B. 899 ; 16 L. J. Q. B. 39 ; 11 Jur. 101 ; 8 L. T. 

Ohl S. 135 29, 224, 270, 276 

Blake, Be, 30 L. J. Q. B. 32 . 7, 253 

xxii 



TABLE OF CASES. Bla— Bre. 

PAQE 

Blake v. Albion Assurance Society, 4 C. P. D. 94 ; 48 L. J. C. P. 169 ; 

27 W. K. 321 ; 40 L. T. 211 272 

V. Appleyard, 3 Ex. D. 195 ; 47 L. J. Ex. 407 ; 26 W. R. 592 

341, 342 

V. Pilfold, 1 M. & Rob. 198 217, 223, 535 

V. Stevens and others, 4 F. & F. 232 ; 11 L. T. 543 

7, 30, 154, 170, 173, 253, 297 
Bliss V. Stafford, Owen, 37 ; Moore, 188 ; Jenk. 247 . . . . 140 
Bloodworth v. Gray, 8 Scott, N. R. 9 ; 7 M. & G. 334 . . . . 63 

Blumley v. Rose, 1 Roll. 73 106 

Bolckow V. Young, 42 L. T. 690 508 

Bold V. Bacon, Cro. Eliz. 346 139 

Bolton (Sir William) w Dean, cited in Austin v. Culpepper, 2 Show. 

313 ; Skinner, 123 9 

Bond V. Douglas, 7 C. & P. 626 155, 272, 333, 533 

Bonomi v. Backhouse, E. B. & E. 662 ; 9 H. L. C. 503 ; 34 L. J. Q. B. 

181 317, 456 

Boosey v. Wood, 3 H. & C. 484 ; 34 L. J. Ex. 65 ; 11 Jur. N. S. 181 ; 

13 W. R. 317 ; 11 L. T. 639 489 

Booth V. Briscoe, (C. A.) 2 Q. B. D 496 ; 25 AV. R. 838 28, 47, 365, 370 

Boston v. Tatam, Cro. Jac. 623 58 

Botterill and another v. Whvtehead, 41 L. T. 588 

68, 77, 172, 214, 219, 234, 601 

Bourke v. Warren, 2 C. & P. 307 129, 130, 540 

Bourn's (Sir John) Case, cited Cro. Eliz. 497 . .... 131 

Bowden v. Allen, 39 L. J. C. P. 217 ; 18 W. R. 695 ; 22 L. T. 342 . 513 
Bowey v. Bell, 4 Q. B. D. 95 ; 48 L. J. Q. B. 161 ; 27 W. R. 247 ; 39 

L. T. 608 336 

Boxe V. Barnaby, 1 Roll. Abr. 55 ; Hob. 117 75 

Boydell v. Jones, 4 M. & W. 446; 7 Dowl. 210 ; 1 Horn & H. 408 

23, 27, 99, 116, 256 
Boyle V. Wiseman, 10 Ex. 647 ; 11 Ex. 360 ; 24 L. J. Ex. 160, 284 ; 

24 L. T. Old S. 274 ; 25 L. T. Old S. 203 . . . 504, 534, 536 

Bracebridge v. Watson, Lilly Entr. 61 311 

Bracegirdle v. Bailey, 1 F. & F. 536 8, 305 

V. Orford, 2 Man. & S. 77 8 

Bradlaugh, Ex parte, 3 Q. B. D. 509 ; 47 L. J. M. C. 105 ; 26 W. R. 

758 ; 38 L. T. 680 406 

and Besant v. The Queen, (C. A.) 3 Q. B. D. 607 ; 48 L. J. 

M. C. 5 ; 26 W. R. 410 ; 38 L. T. 118 ; 14 Cox, 

C. C. 68 . 405, 424 

S. C. sub nomine R. v. Bradlaugh and Besant, 2 Q. B. D. 
569 ; 46 L. J. M. C. 286 ; 25 W. R. Dig. 91 . . 586 

Bradley v. Methwyn, Selwjni's Nisi Prius, 982 5 

Bradt v. Towsley, 13 Wend. 253 313 

Brady v. Youlden, Kerferd & Box's Digest of Victoria Cases, 709 ; 

Melbourne Argus Reports, Sept. 6th, 1867 .... 67, 317 
Brand and wife v. Roberts and wife, 4 Burr. 2418 . . . . 59, 85 
Brandreth v. Lance, 8 Paige, 24 (American) . . . . .15 
Brandrick v. Johnson, 1 Vict. L. R. Cases at Law, 306 . . . 66, 77 
Bray v. Ham, 1 Browul. & Golds. 4 . . . . . . .80 

Brayne v. Cooper, 5 M. & W. 249 56, 66, 78, 84 

Brembridge v. Latimer, 12 W. R. 878 ; 10 L. T. 816 . 102, 177, 487 

Brett V. Watson, 20 W. R. 723 . . . ... 154, 271 

Brewer v. Dew and another, 11 M. & W. 625 8 

xxiii 



Bre-Bui-. TABLE OF CASES. 

PAGE 

Brewster's Case, Dig. L. L. 76 420, 421 

Bridges v. Playdel, Brownl. & Goldsb. 2 56 

Brisret's Case, Godb. 157 56 

Briiie V. Bazaloette, 3 Ex. 692 ; 18 L. J. Ex. 348 . . . 275, 298 
Brinsmead r. Harrison, L. E. 7 C. P. 547 ; 41 L. J. C. P. 190 ; 20 

W. R. 784 ; 27 L. T. 99 457 

Broadhurst v. Willej^ W. N. 1876, p. 21 .341 

Brocklehank v. Kins^'s Lvnn Steanii^liip Co., 3 C. P. D. 365 ; 47 L. J. 

C. P. 321 ; 26 W. R. Dig. 64 ; 38 L. T. 489 . . . . 354, 467 

Broke's Case, Moore, 409 74 

Bromage r. Prosser, 6 D. & R. 296 ; 4 B. & C. 247 ; 1 C. & P. 475 

164, 206, 240, 264, 267, 282, 471 

Bromefield r. Snoke, 12 Mod. 307 80 

Brook V. Evans, 29 L. J. Ch. 616 ; 6 Jiir. N. S. 1025 ; 8 W. R. 688 

249, 436 

V. Rawl, 4 Ex. 521 ; 19 L. J. Ex. 114 . . . . 141, 143 

V. Wise, Cro. Eliz. 878 63 

Brooke v. A\Tillon, 42 L. J. C. P. 126 274 

V. Clarke, Cro. Eliz. 328 ; 1 Yin. Abr. 464 .... 68 

V. Montague (Sir Henry), Cro. Jac. 90 190 

Brookes v. Ticliborne, 5 Ex. 929 ; 20 L. J. Ex. 69 ; 14 Jur. 1122 . . 533 
Brooks V. Blanshard, 1 Cr. & M. 779 ; 3 Tyr. 844 . 216, 218, 238, 286 

r. Israel, 4 Q. B. D. 98 ; 48 L. J. Q. B. 161 ; 27 W. R. 247 ; 

39 L. T. 608 336 

Broome v. Gosden, 1 C. B. 728 .. . 101, 102, 129, 539, 540, 558 
Brown, Ex parte, 5 B. & S. 280 ; 33 L. J. Q. B. 193 ; 12 W. R. 821 ; 

10 L. T. 453 425, 426 

„. Crcome, 2 Stark. 297 . . . . 226, 241, 275, 283, 542 

r. Hirley, 5 Up. Can. Q. B. Rep. (Old S.), 734 . . . . 458 

V. Lane'or Loav, Cro. Jac. 443 ; 1 Roll. Abr. 79 . . 131, 542 

■ V. ]\hmay, 4 D. & R. 830 525 

r. Smith, 13 C. B. 596 ; 22 L. J. C. P. 151 ; 1 C. L. R. 4 ; 17 

Jur. 807 78, 291 

V. Wootton, Cro. Jac. 73 ; Yelv. 67 ; Moo. 762 . . . . 457 

Bruce r. Xicolopulo, 11 Ex. 133 ; 24 L. J. Ex. 324 . . . . 536 
Brunkard v. Segar, Cro. Jac. 427 ; Hutt. 13 ; 1 Vin. Abr. 427 . 61, 82 
Brunswick (Duke of) v. Harmer, 14 Q. B. 185 ; 19 L. J. Q. B. 20 ; 

14 Jur. 110 ; 3 C. & K. 10 . 160, 168, 230, 232, 293, 456, 532, 

539, 592 

Bruton v. Downes, 1 F. & F. 668 24, 193 

Bryant, In re, 4 Ch. D. 98 ; 25 AV. R. 230 ; 35 L. T. 489 . . . 432 

-^ — V. Loxton, 11 Moore, 344 67, 80 

Buchanan r. Taylor, W. N. 1876, p. 73 ; Bilt. p. 131 ; 20 Sol. J. 298 ; 

60 L. T. Notes, 268 508 

Buckingham v. Murray, 2 C. & P. 46 471 

Buckley r. Wood, 4 Rep. 14 ; Cro. Eliz. 230 . . . 192,193,24.5 
Buckton V. Higgs, 4 Ex. D. 174 ; 27 W. R. 803 ; 40 L. T. 755 . . 341 
Buenos Ayres Gas Co. v. AVilde, 29 W. R. 43 ; 42 L. T. 657 . 429, 436 

Bull r. Chapman, 8 Ex. 104 374 

Burcher r. Orchard (1652), Stv. 349 ; 1 Roll. Abr. 781 . 351, 371, 560 

Burder r. , 3 Curt. 827 ! 403 

Bmdett v. Abbot, 5 Dow, H. L. 165 ; 14 East, 1 . . 154, 155, 157, 426, 

435 

V. Colman, 14 East, 163 423 

Burford (Bailiff of) r. Lcnthall and others, 2 Atk. 551 .... .340 



TABLE OF CASES. Bur— Car 

PAdE 

Burges v. Bracher, 8 Mod. 238 ; 2 Ld. Eayiii. 1366 ; 1 Stra. 594 

96, 558 
Burgoine v. Taylor, 9 Ch. D. 1 ; 47 L. J. Ch. 542 ; 26 W. E. 568 ; 

38 L. T. 4:38 530 

Burke v. Rooney, 4 C. P. D. 226 ; 48 L. J. C. P. 601 ; 27 W. E. 915 . 522 

Burnet V. Wells, 12 Mod. 420 79,137 

Burnett v. Chetwood, cited in Southey v. Sherwood, 2 Mer. p. 441 . 14 

Burton v. Plummer, 2 A. & E. 343 537 

Bush V. Trowbridge Waterworks Co., L. R. 10 Ch. 459 ; 23 W. E. 

641 ; 33 L. T. 137 477 

Bustros V. Bustros, 49 L. J. Ch. 396 ; 28 W. E. 595 . . . . 357 
V. White, (C. A.) 1 Q. B. D. 423 ; 45 L. J. Q. B. 642 ; 24 

W. E. 721 ; 34 L. T. 835 517, 521 

Butt V. Conant, 4 Moore, 195 ; 1 Brod. & Bing. 548 ; Gow, 84 428, 571 
Button V. Heyward et ux., 8 Mod. 24 18, 55, 96 

V. Woolwich Mutual Bg. Soc, 5 Q. B. D. 88 ; 49 L. J. Q. B. 

249 ; 28 W. E. 136 ; 42 L. T. 54 569 

Bvrchley's Case, 4 Eep. 16 75 

Byrd v. Nunn, 7 Ch. I). 284 ; 47 L. J. Ch. 1 ; 26 W. E. 101 ; 37 L. T. 

585 499 

C^SAR V. Ciirsenj^, Cro. Eliz. 305 64, 71 

Calder r. Halket, 3 Moo. P. C. C. 28 188 

Caley v. Caley, 25 W. E. 528 352 

Canifield v. Bird, 3 C. & K. 56 273 

Campbell v. Spottiswoode, 3 B. & S. 769 ; 32 L. J. Q. B. 185 ; 9 Jur. 
N. S. 1069 ; 11 W. E. 569 ; 8 L. T. 201 ; S. C. at Nisi 
Prius, 3 F. & F. 421 . . . 22, 30, 35, 38, 39, 40, 49 

■ and another v. The Queen, 11 Q. B. 799 ; 17 L. J. M. C. 

89 . . . 588 

Canadian Oilworks Corporation v. Hav, 38 L. T. 549 ; W. N. 1878, 

p. 107 ." 475 

Cane v. Golding, Style, 169, 176 141, 143 

Cannell v. Curtis, 2 Bing. N. C. 228 ; 2 Scott, 379 . . . 69, 530 
Cans V. Eoberts, 1 Kel). 418 ; S. C. snh nom. Eoberts v. Herbert, Sid. 

97 59, 85 

Capel V. Powell and another, 17 C. B. N. S. 743 ; 34 L. J. C. P. 168 ; 

10 Jur. N. S. 1255 ; 13 W. E. 159 ; 11 L. T. 421 . . . 351 

and others v. Jones, 4 C. B. 259 ; 11 Jur. 396 . . 104, 115 

Capes V. Brewer, 24 W. E. 40 460 

Capital & Counties Bank v. Henty & Sons (in C. P. D.) 28 W. E. 

490 ; 42 L. T. 314 . . . . 26, 103, 116, 228, 236, 555 

(C. A.), 5 C. P. D. 514 ; 49 L. J. C. P. 830 ; 28 W. E. 851 ; 43 

L. T. 651 . . . . 26, 103, 113, 116, 228, 236, 540, 555 
Carew v. Davies, 5 E. & B. 709 ; 25 L. J. Q. B. 165 . . . .505 
Carmichael v. Waterford & Limerick Ey. Co., 13 Ir. L. E. 313 . 270, 297 

Carn v. Osgood, 1 Lev. 280 71 

Carpenter v. Tarrant, Cas. Temp. Hardwicke, 339 . . . . 58 

Carr v. Duckett, 5 H. & N. 783 ; 29 L. J. Ex. 468 . . 142, 487, 639 

(Sir John) v. Hood, 1 Camp. 355 n. . . . . . 37, 48 

V. Jones, 3 Smith, 491 ; S. C. sub nom. Stiles v. Nokes, 7 East, 

493 .. . 24, 46, 176, 255 

Carrol v. Bird, 3 Es]). 201 201 

V. Falkiner, Kerlerd & Box Dig. of Victoria Cases, 216 . , 32V 

Carslake v. Mapledoram, 2 T. E. 473 63 

XXV 



Car— Chr. TABLE OF CASES. 

PAGE 

Carter r. Jcmes, G C. & P. 64 ; 1 M. & R. 281 530 

r. Leeds Daily News Co. & Jackson, W. N. 1876, p. 11 ; Bitt. 

91 ; 1 Charley, 101 ; 20 Sol. J. 218 ; 60 L. T. Notes, 196 

511, 514, 515, 620 

V. Stubbs (C. K.\ 50 L. J. C. P. 4 ; 29 W. R. 132 ; W. N. 1880, 

p. 183 522 

Cartwrigbt x\ Wright, 5 B. & Aid. 615 471 

Casey v. Arnott, 2 C. P. D. 24 ; 46 L. J. C. P. 3 ; 25 AV. R. 46 ; 35 

L. T. 424 148, 357 

Cashin v. Cradock, 2 Ch. D. 140 ; 34 L. T. 52 ; 25 W. E. 4 ; 3 Ch. D. 

376 ; 25 W. R. 4 ; 35 L. T. 452 499, 516 

Castro's Case, L. R. 9 Q. B. 219 ; 12 Cox, C. C. 358 . . 430, 433 

Catling V. King, 5 Ch. D. 660 ; 46 L. J. Ch. 384 ; 25 W. R. 550 ; 36 

L. T. 526 477 

Catterall v. Kenyon, 3 Q. B. 310 372 

Caulfield v. Whi'tworth, 16 W. R. 936 ; 18 L. T. 527 . 269, 274, 537, 542 
Cawdrey v. Highley, al. Tythay al. Tetley, Cro. Ca. 270 ; Godb. 441 68,74 

Ceeleyu Hoskms,Cro. Car. 509 56,60,123 

Chadwick v. Herapath, 2 C. B. 885 ; 16 L. J. C. P. 104 ; 4 D. & L. 

653 300, 497 

Chalmers v. Payne, 2 C. M. & R. 156 ; 1 Gale, 69 ; 5 Tyr. 766 

27, 251, 252, 253, 552 

V. Shackell, 6 C. & P. 475 170, 172, 306 

Chamberlain v. White or Willmore, Cro. Jac. 647 ; Palm. 313 . . 371 
Chantler and wife v. Lindsey, 16 M. & W. 82 ; 16 L. J. Ex. 16 ; 4 

D. & L. 339 491 

Chapman, Ex imrte, 4 A. & E. 773 441 

V. Lamphire, 3 Mod. 155 79 

V. Midland Ry. Co., 5 Q. B. D. 167 ; 28 W. R. 413 . . 342 

(C. A.) 5 Q. B. D. 431 ; 49 L. J. Q. B. 
449 ; 28 W. R. 592 ; 42 L. T. 612 . 343 

Charges (Sir Thomas) v. Rone, 3 Lev. 30 236 

Charlter v. Barret, Peake, 32 273 

Charlton v. Watton, 6 C. & P. 385 176, 261, 302 

Charlton's (Lechmere) Case, 2 My. & Cr. 316 . . . . 430, 434 

Charnel's Case, Cro. Eliz. 279 \ 62 

Charter v. Peter, Cro. Eliz. 602 121 

Chatfield v. Sedgwick, 4 C. P. D. 459 ; 27 W. R. 790 ; 41 L. T. 438 . 342 
Cheese v. Lovejoy, (C. A.) 2 P. D. 161 ; 46 L. J. P. D. & A. 67 ; 25 

W. R. 453 ; 37 L. T. 294 551 

V. Scales, 10 M. & W. 488 ; 12 L. J. Ex. 13 ; 6 Jur. 958 

22, 29, 283 
Cheltenham & Swansea Wagon Company {In re), L. R. 8 Ecp 580 ; 

38L. J. Ch. 330; 17 W. R. 463; 20 L. T. 169 . . . . 429 
Chennell, In re, (C. A.^ 8 Ch. D. 492 ; 47 L. J. Ch. 583 ; 26 W. R. 

595 ; 38 L. T. 494 564 

Chester v. Wortley, 17 C. B. 410 ; 25 L. J. C. P. 117 . . . . 504 

Chesterfield Colliery Co. v. Black, 24 W. R. 783 ; W. N. 1876, p. 204 515 

Child v. Affleck and wife, 4 M. & R. 338 ; 9 B. & C. 403 . : . 201 

Chillingworth v. Griml:)le, TimcR, Nov. 7th, 1877 .... 269 
Chorlton v. Dickie, 13 Ch. D. 160 ; 40 L. J. Ch. 40 ; 28 W. R. 228 ; 

41 L. T. 469 529 

Christie v. Christie, L. R. 8 Ch. 499 ; 42 L. J. Ch. 544 ; 21 AY. R. 

493 ; 28 L. T. 607 ; . 192 

V. Powell, Peake, 4 109 

xxvi 



TABLE OF CASES. Chu— Col. 

PAGE 

Chubb V. Flannagan, 6 C. & P. 431 160, 387 

V. Westley, 6 C. & P. 436 273, 276 

Churcli V. Earnett, L. R. 6 C. P. 116 ; 40 L. J. C. P. 138 . . . 528 

V. Peny, 36 L. T. 513 . . . . . . 512, 515 

Churchill (Lord) v. Hunt, 1 Chit. 480 ; 2 B. & Aid. 685 . 23, 176, 537 

Clare v. Blakesley and others, 8 Dowl. 835 432 

Clark V. Chambers, 3 Q. B. D. 327 ; 47 L. J. Q. B. 427 ; 26 W. R. 

613 ; 38 L. T. 454 322 

V. Freeman, 11 Beav. 112 ; 17 L. J. Ch. 142 ; 12 Jur. 149 . 14, 

16, 29, 34, 79 

V. Molyneux, 3 Q. B. D. 237 ; 47 L. J. Q. B. 230 ; 26 W. R. 104 ; 

36 L. T. 466 ; 37 L. T. 694 ; 14 Cox, C. C. 10 

142, 214, 219, 266, 269, 274, 278, 280, 472, 541 

V. Newsam, 1 Ex. 131 270, 297 

Clarke v. Cookson, 2 Ch. D. 746 ; 45 L. J. Ch. 752 ; 24 W. R. 535 ; 

34 L. T. 646 454 

V. Morgan, 38 L. T. 354 315, 330 

V. Taylor, 3 Scott, 95 ; 2 Bing. N. C. 654 ; 2 Hodges, 65 173, 176 

Clarke's Case, de Dorchester, 2 Roll. Rep. 136 . . 56, 102, 123 

Clarkson v. Lawson, 6 Bing. 266 ; 3 M. & P 605 ; 6 Bing. 587 ; 4 M. 

& P. 356 30, 173 

Clay V. Eoberts, 9 Jur. N. S. 580 ; 11 W. E. 649 ; 8 L. T. 397 26, 29, 

76, 477, 497 
V. Yates, 1 H. k N. 73 ; 25 L. J. Ex. 237 ; 4 W. E. 557 ; 27 L. 

T. Old S. 126 374 

Cleaver v. Sarraude, 1 Camp. 268 217 

Clegg V. LafFer, 3 M. k Scott, 727 ; 10 Bing. 250 . . 103, 125, 154 
Clement v. Chivis, 9 B. & C. 172 ; 4 M. & R. 127 22 

V. Fisher, 7 B. & C. 459 ; 1 M. & R. 281 ... . 128 

V. Lewis, 7 Moore, 200 ; 3 Br. & Bing. 297 ; 3 B. & Aid. 

702 29, 99, 172, 256, 291, 486 

Clerk V. Dyer, 8 Mod. 290 124 

Clifton V. Wells, 12 Mod. 634 63 

Clinton v. Henderson, 13 Jr. C. L. R. App. 43 

Clover V. Roydon, L. R. 17 Ec[. 190 ; 43 L. J. Ch. 665 : 22 W. R. 

254 ; 29 L. T. 639 15 

Clutterbuck v. Chaffers, 1 Stark. 471 153, 383, 580 

Cobham v. Dalton, L. R. 10 Ch. App. 655 ; 44 L. J. Ch. 702 ; 23 W. 

R. 865 432 

Cochrane, Ex parte, in re Mead, L. R. 20 Et^. 282 ; 44 L. J. Bkcy. 87 ; 

23 W. R. 726 ; 32 L. T. 508 431 

Cockaine v. Hopkins, 2 Lev. 214 61, 82, 125 

Cockaine's (Lady) Case, Sir Thos. Cockaine and wife v. Witnam, Cro. 

Eliz. 49 56 

Cockayne v. Hodgkisson, 5 C. & P. 543 209, 217 

Colburn v. Patmore, 1 C. M. & R. 73 ; 4 Tyr. 677 . 157, 294, 372, 374 

Cole V. Firth, 4 Ex. D. 301 ; 40 L. T. 857 342 

Coleman v. West Hartlepool Harbour and Ry. Co., 8 W. R. 734 ; 2 L. 

T. 766 256, 429, 436 

Rt ux. V. Harcourt, 1 Lev. 140 348, 350 

Coles i;. Haveland, Cro. Eliz. 250 ; Hob. 12 Ill 

Collette V. Goode, 7 Ch. D. 842 ; 47 L. J. Ch. 370 ; 37 L. T. 504 . . 499 
Collins V. Carnegie, 3 N. & M. 703 ; 1 A. & E. 695 . . 69, 76, 81, 531 

V. Vestry of Paddington (C. A.) 5 Q. B. D. 368 ; 49 L. J. Q. B. 

264 ; 28 W. R. 588 ; 42 L. T. 573 563 

xxvii 



Col-Cre. TABLE OF CASES. 

PAGE 

Collins V. Welcli, 5 C. P. D. 27 ; 49 L. J. C. P. 260 ; 28 W. E. 208 ; 

41 L. T. 785 337 

V. Yates and another, 27 L. J. Ex. 150 517 

Colman v. Godwin, 3 Dougl. 90 ; 2 B. & C. 285 n. . . . 56, 121 
Colonial Assnrance Co. Limited v. Prosser, W. N. 1876, p. 55 ; Bitt. 

122 ; 20 Sol. J. 281 ; 60 L. T. Notes, 250 496 

Combe v. Edwards, 3 P. D. 103 431 

Commonwealth, The, v. Kneeland, Thacher's C. C. 346 . . . 159 

Conesby's Case, Year Book, 9 Hen. VII. pp. 7, 8 ; 1 Poll. Abr. 

108 . _. . . . ^ 149 

( 'onnors -y. Justice, 13 Ir. C. L. R. 451 77 

Cook V. Cook, 100 Mass. 194 317 

V. Dey, 2 Cli. D. 218 ; 45 L. J. Cli. 611 ; 24 W. R. 362 . . 460 

. r. Field, 3 Esp. 133 178, 291, 319 

V. Ward, 6 Bing. 409 ; 4 M. & P. 99 .... 6, 540, 625 

V. Wingtield, 1 Str. 555 59, 85 

and another v. Batchellor, 3 Bos. & Pull. 150 . . . 81, 367 

Cooker. Cox, 3 M. &S. 110 470 

y. Hughes, P. & M. 112 22, 98, 302, 535 

■ V. Oceanic Steam Co., W. N. 1875, p. 220 ; Bitt. 33 ; 20 Sol. 

J. 80 ; 60 L. T. Notes, 68 501 

and another v. Wildes, 5 El. & Bl. 328 ; 24 L. J. Q. B. 367 ; 

1 Jur. N. S. 610 ; 3 C. L. R. 1090 .... 228, 269, 281 
Cooper v. Hawkswell, 2 Mod. 58 126 

V. Lawson, 1 P. & D. 15 ; 8 A. & E. 746 ; 1 W. AV. & H. 601 ; 

2 Jur. 919 40,171,248,256 

V. Smith, Cro. Jac. 423 ; 1 Roll. Abr. 77 121 

Corcoran v. Corcoran, 7 Ir. C. L. R. 272 311 

Cornwall v. Richardson, R. & M. 305 275, 298 

Cosgrave v. Trade Auxiliary Co., Ir. R. 8 C. L. 349 . . . 249, 483 

Cotes V. Ketle, Cro. Jac. 204 67, 80 

Counsel v. Garvie, Ir. R. 5 C. L. 74 566 

Cowan V. Milbourn, L. R. 2 Ex. 330 ; 36 L. J. Ex. 124 ; 15 W. R. 750 ; 

16 L. T. 290 374, 399 

Coward v. Wellington, 7 C. & P. 531 311, 349 

Cowlesu Potts, 34 L. J. Q. B. 247 ; 11 Jur. N. S. 946; 13 W. R. 

858 206 

Cox V. Cooper, 12 W. R. 75 ; 9 L. T. 329 . . . .25, 100, 112 

— V. Feeney, 4 F. & F. 13 41, 47 

— V. Humphrey, Cro. Eliz. 889 59, 96 

— V. Lee, L. R. 4 Ex. 284 ; 38 L. J. Ex. 219 . . . . 22, 23 
Coxhead v. Richards, 2 C. B. 569 ; 15 L. J. C. P. 278 ; 10 Jur. 984 

29, 205, 214, 215, 218 
Cracknall v. Janson, 11 Ch. D. 1 ; 27 AV. R. 851 ; 40 L. T. 640 . . 340 
Craig V. Phillips, (C. A.) 3 Ch. D. 249 ; 47 L. J. Ch. 239 ; 26 W. R. 

293 ; 37 L. T. 772 563 

Crauden v. Walden, 3 Lev. 17 . . . . . . • • .73 

Craven v. Smith, L. R. 4 Ex. 146 ; 38 L. J. Ex. 90 ; 17 W. R. 710 ; 

20 L. T. 400 334, 337, 464 

Crawfoot v. Dale, 1 Ventr. 263 ; 3 Salk. 327 80 

Crawford %\ Middleton, 1 Lev. 82 163, 265 

Crawford's Case, 13 Q. B. 613 ; 18 L. J. Q. B. 225 ; 13 Jur. 955 427, 438 
Creen v. Wright, 2 C. P. D. 354 ; 46 L. J. C. P. 427 ; 25 W. R. 502 ; 

36 L. T. 355 338, 560 

Creevy v. Carr, 7 C. & P. 64 159, 309, 458 



TABLE OF CASES. Cre— DaW. 

PAGE 

Crekrliton v. Finlay, Arm. Mac. & Ogle, 385 303 

CrisJ i;. Gill, 29 L. T. Old S. 82 79,80,227,236 

Croford V. Blisse, 2 Bula. 150 126 

Croft V. Stevens, 7 H. & N. 570 ; 31 L. J. Exch. 143 ; 10 W. R. 272 ; 

5 L. T. 683 237 

(Sir Herbert) v. Brown, 3 Buls. 167 55, 124 

Cromwell's (Lord) Case, 4 ReiJ. 13 108, 476 

Cropp V. Tilney, 3 Salk. 226 9, 21 

Crowe V. Barnicot, 37 L. T. 68 495 

Cucks V. Starre, Cro. Car. 285 73 

Cuddington v. Wilkins, Hobart, 67, 81 ; 2 Hawk. P. C. c. 37, s. 48 

° 58, 497 

Curry v. Walter, 1 B. & P. 525 ; 1 Esp. 456 244 

Curtis V. Curtis, 3 M. & Scott, 819 ; 4 M. & Scott, 337 ; 10 Bing. 

447 55 

V. Mussey, 6 Gray (Mass.) 261 362 

Dacy v. Clinch, Sid. 53 59, 62, 119 

Daines and another v. Hartley, 3 Ex. 200 ; 18 L. J. Ex. 81 ; 12 Jur. 

1093 111,538 

Dale, Ex parte, 2 C. L. R. 870 382 

Kc parte, 43 L. T. 534 448 

Dancaster v. Hewson, 2 M. & R. 176 193, 537 

Darby v. Ouseley, 1 H. & N. 1 ; 25 L. J. Ex. 227 ; 2 Jur. N. S. 497 

99, 272, 297, 302, 551 
Davey v. Pemberton, 11 C. B. N. S. 628 ; 8 Jur. N. S. 891 . 337, 521 

Davidson v. Gray, 5 Ex. D. 189, n. ; 40 L. T. 192 .. . 339, 342 

(C. A.) 42 L. T. 834 339, 342 

Davies v. Snead, L. R. 5 Q. B. 608; 39 L. J. Q. B. 202 ; 18 W. R. Dig. 

33 ; 23 L. T. 609 215, 219 

and others v. Felix and others, (C. A.) 4 Ex. D. 32 ; 48 L. J. 

Ex. 3 ; 27 W. R. 108 ; 39 L. T. 322 555 

and wife v. Solomon, L. R. 7 Q. B. 112 ; 41 L. J. Q. B. 10 ; 20 

W. R. 167 ; 25 L. T. 799 311, 316, 324 

Davis V. Cutbush and others, 1 F. & F. 487 . . 242, 285, 302, 304 

, V Davis, 13 Ch. D. 861 ; 48 L. J. Ch. 40 ; 28 W. R. 345 . . 550 

V. Duncan, L. R. 9 C. P. 396 ; 43 L. J. C. P. 185 ; 22 W. R. 

575 ; 30 L. T. 464 52, 450 

. V. Gardiner,- 4 Rep. 16 ; 2 Salk. 694 ; 1 Roll. Abr. 38 (Ann 

Davis's Case) 58, 310, 326 

— V. Garland, 1 Q. B. D. 250 ; 45 L. J. Q. B. 137 ; 24 W. R. 252 ; 

33 L. T. 727 459 

V. Gray, 30 L. T. 418 507 

V. Lewis, 7 T. R. 17 65, 79, 126, 163, 165 

V. Miller et ux., 2 Str. 1169 61, 80, 83 

V. Reeves, 5 Ir. C. L. R. 79 211 

V. Williams, 13 Ch. D. 550 ; 28 W. R. 223 . . . .516 

Davison v. Duncan, 7 El. & Bl. 229 ; 26 L. J. Q. B. 104 ; 3 Jur. N. S. 
613 ; 5 W. R. 253 ; 28 L. T. Old S. 265 

165, 175, 186, 236, 259, 261, 262, 283 
Daw V. Eley, L. R. 7 En. 49 ; 38 L. J. Ch. 113 ; 17 W. R. 245 

44, 430, 436 
Dawes v. Boltun or Boughton, Cro. Eliz. 888 ; 1 Roll. Abr. 68 . .59 
Dawkins v. Paulet (Lord), L. R. 5 Q. B. 94 ; 39 L. J. Q. B. 53 ; 18 W. 

R. 336 ; 21 L. T. 584 194,195,199,484,497 

xxix 



Daw— Dob. TABLE OF CASES. 

PAGE 

Dawkius r. renrhyn (Lord), (C. A.) 6 Cli. D. 318 ; 26 AY. R. 6 ; 37 L. 

T. 80 478 

(H. L.) 4 App. Cas. 51 ; 48 L. J. Ch. 
304 ; 27 W. R. 173 ; 39 L. T. 583 . 477, 478 

V. Rokeby (Lord), L. R. 8 Q. B. 255 ; 42 L. J. Q. B. 63 ; 21 

W. R. 544 ; 4 F. & F. 806 ; 28 L. T. 134 

193, 194, 195, 196, 536 
(H. L.) L. R. 7 H. L. 744 ; 45 L. J. Q. B. 8 ; 
23 W. R. 931 ; 33 L. T. 196 . . 193, 194, 536 

Day V. Bream, 2 M. & Rob. 54 153, 360, 384, 547 

V. Brownri-g, 10 Ch. D. 307 ; 48 L. J. Cli. 173 ; 27 W. R. 217 ; 

39 L. T. 226, 553 15 

V. Buller, 3 Wils. 59 . . 75 

V. Robinson, 1 A. & E. 554 ; 4 X. & M. 884 . . 104, 109, 295 

Dean's Case, Cro. Eliz. 689 444 

De Cosse Brissac v. Rathbone, G H. & K. 301 ; 30 L. J. Ex. 238 . 439 

De Crespiguy v. Wellesley, 5 Bing. 392 ; 2 M. & P. 695 

157, 163, 164, 174, 262 
Defries v. Davis, 7 C. & P. 112 ; 3 Dowl. 629 . . . . 273, 353 

Delacroix v. Tlievenot, 2 Stark. 63 151 

De La Grange v. McAndrew, 4 Q. B. D. 210 ; 48 L. J. Q. B. 315 ; 27 

W. R. 417 . . 467 

Delany v. Jones, 4 Esp. 191 55, 226, 241, 283 

Delegal v. Highley, 5 Scott, 154 ; 3 Bing. X. C. 950 ; 8 C. & P. 444 ; 

3 Hodges, 158 190, 276, 293, 319 

Dengate aiid wife v. Gardiner, 4 M. & W. 5 ; 2 Jiir. 470 . . 319, 325 

Derry v. Handler, 16 L. T. 263 168, 333 

Desilla v. Schunck & Co. and Fels & Co., W. X. 1880, p. 196 . . 458 

Deverill v. Hulbert (not reported) 108 

Dexter v. Spear, 4 Mason, 115 387 

Dibdin v. Swan and Bostock, 1 Esp. 28 50 

Dicas V. Lord Brougham, 6 C. & P. 249 ; 1 M. & R. 309 . . . 189 

V. Lawson, cited 5 Tjtw. 766 ; 2 C. M. & R. 156 . . ^ . 253 

Dickeson v. HilUard and another, L. R. 9 Exch. 79 ; 43 L. J. Ex. 37 ; 

22 W. R. 372 ; 30 L. T. 196 212 

Dickinson v. Barber, 9 Tvng. Mass. 218 354 

Dicks V. Brooks, (iuterloc.), (C. A.) 13 Ch. D. 652 ; 28 W. R. 525 . 564 
(C. A.) 15 Ch. D. 22 ; 49 L. J. Ch. 812 ; 29 W. R. 87 ; 

40 L. T. 710 ; 43 L. T. 71 144 

Dickson v. Combermere and others, 3 F. & F. 527 196 

V. Wilton (The Earl oQ, 1 F. & F. 419 . . . 196, 236, 268 

Dig1:)v V. Thompson and another, 1 X. & M. 485 ; 4 B. & Ad. 821 . 25 
Dill r. Murphv and another, 1 Moore P. C. C. N. S. 487 . . . 425 
Disney v. Longbourne, 2 Ch. D.704; 45 L. J. Ch. 532; 24 W. R. 663; 

35 L. T. 301 501 

Dixon V. Bell, 5 Maule & S. 19S 352 

V. Enoch, L. R. 13 Eq. 394 : 41 L. J. Ch. 231 ; 20 W. R. 359 ; 26 

L. T. 127 . . .' 514, 532 

V. Holden, L. R. 7 Eq. 488 ; 17 W. R. 482 ; 20 L. T. 357 

14, 15, 16, 17 

V. Parsons, 1 F. & F. 24 201 

V. Smith, 5 H. & X. 450 ; 29 L. J. Ex. 125 

76, 167, 218, 313, 315, 316, 330, 543 
Dobedeu. Fisher, Tmes of July 29th, 1880 .... 306,494 
Dobson r. Thornistone, 3 Mod. 112 T9 

XXX 



TABLE OF CASES. 



Dod— Egr. 



530 



41 L. T. 258 



509 



; 23 W. R. 7 



; 26 AV. R. 98 
36 L. J. P. C. 37 



I'AOE 

66, 72 
534 
533 
164 
561 

71 
136 

55 

196 

83 
382 
354 
439 
460 
192 

. 425 
5 Scott, 40 ; 3 Hodges, 154 

66, 74, 75, 293, 311, 541 
866 ; 46 L. J. Ch. 105 ; 25 W. 
431,457 

1 Roll. Abr. 58 . . . .72, 73 

2 Keb. 549 ; 1 Lev. 276 ; Sid. 424 79 
8, 13, 22, 24, 374, 540 

M. C. 50 ; Dears C. C. 64 ; 

.... 405 
Duncan v. Thwaites, 3 B. & C. 556 ; 5 D. & R. 447 244, 245, 246, 251, 486 
Duncombe v. Daniell, 8 C. & P. 222 ; 2 Jur. 32 ; 1 W. W. & H. 101 • 

236, 241, 302, 304 

Dunman v. Bigg, 1 Camp. 269, n 235 

Dunn V. Hall, i Carter, 345 (Indiana) ; 1 Smith, 288 . . . . 362 
Dunne v. Anderson, 3 Bing. 88 ; 10 Moore, 407 ; R. & M. 287 . . 43 
Dwver v. Esmonde, 2 L. E. Ir. 243 ; Ir. R. 11 C. L. 542, below 

^ 52, 168, 230 

Dymond v. Croft, 3 Cli. D. 512 ; 45 L. J. Cli. 604 ; 24 W. R. 700 ; 

35L.T. 27 462 

Eaden and another v. Jacobs (C. A.), 3 Ex. D. 335 ; 47 L. J. Ex. 74; 

26 W. R. 159 ; 37 L. T. 621 506 

Eagleton v. Kingston, 8 Ves. 473 533 

East V. Chapman, 1 M. & M. 46 ; 2 C. & P. 570 . . . 302, 304 

Eastmead v. Witt, 18 C. B. 544 ; 25 L. J. C. P. 294 ; 2 Jur. N. S. 

. 203, 226, 225 

. 32, 51, 127 

. . 56 

22, 477 

C. P. 115; 17 

. 404 

J. C. P. 

55, 68, 76, 173 

28, 170, 173 

. 361 



Dod V. Robinson, Al. 63 . 

Doe d. Devines v. Wilson, 10 Moo. P. C. 502. 

Mudd V. Suckermore, 5 A. & E. 703 . 

Dole V. Lyon, 10 Johns (New York), 447 . 
DoUman v. Jones, 12 Ch. D. 553 ; 27 W. R. 877 ; 
Dolloway v. Turrell, 26 (Wend.) N. Y. 383 
Dorchester (Marquess of) v. Proby, 1 Levinz, 148 
Dorme's Case, Cro. Eliz. 62 .... 

Doss V. Secretary of State for India, L. R. 19 Eq. 

32 L. T. 294 

Dovaston v. Payne, 2 Sra. L. C. 8th Ed. p. 142 . 
Doveton, Ex faric, 26 L. T. 73 . . . 
Dowling 'V. Browne (1854), 4 Ir. C. L. R. 265 . 
Downie & Arrindell, Re, 3 Moore, P. C. C. 414 
Doyle V. Kaufmann, 3 Q. B. D. 7 ; 47 L. J. Q. B. 2 
. V. O'Doherty, Car.-& M. 418 

and others v. Falconer, L. R. 1 P. C. 328 ; 

15 W. R. 366 

Doyley v. Roberts, 3 Bing. N. C. 835 

Drake, Ex farh., In re Ware, 5 Ch. D. 
R. 641 ; 36 L. T. 677 . 

V. Drake, 1 Vin. Abr. 463 

V. Hill, Sir T. Raym. 184 , 

Du Best V. Beresford, 2 Camp. 511 
Dugdale v. Regina, 1 E. & B. 425 ; 22 L. J 

17 Jur. 546 



1004 

Eastwood V. Holmes, 1 F. & F. 347 . 

Eaton V. Allen, 4 Rep. 16 ; Cro. Eliz. 684 . 

v. Johns, 1 DowL (N. S.)602 . 

Edmunds v. Greenwood, L. R. 4 C. P. 70 ; 38 L. J 

W. R. 142 ; 19 L. T. 423 
Edsall V. Russell, 4 M. & G. 1090 ; 5 Scott, N. R. 801 ; 

4 ; 2 Dowl. (N. S.) 641 ; 6 Jur. 996 . 
Edwards v. Bell and others, 1 Bing. 403 
V. London & N. W. Ry. Co., L. R. 5 C. P. 449 



12 L. 



Egremont Burial Board v. Egremont Iron Ore Co. 
L. J. Ch. 623 ; 28 W. R. 594 ; 42 L. T. 179 



14 Ch. D. 158 ; 49 
516, 



517 



. . 431 

. 501 

. . 495 

. 573 

. . 510 

. 292 

. . 436 
217, 

. . 14 

. 339 

. . 549 
393; 

. 518 



Elb— Fis. TABLE OF CASES. 

tAGE 

Elborow V. Allen, Cro. Jac. 642 140 

Elliot V. Haliiiarack, 1 Mer. 303 

Ellis r. Ambler, 25 W. E. 557 ; 36 L. T. 410 . 

V. Mxmson (C. A.), 35 L. T. 585 ; W. N. 1876, p. 253 . 

Ellissen, Ex parte, cited 5 Q. B. D., at p. 13 

Elmer v. Creasy, 9 Ch. D. 69 

Emblen v. Myers, 6 H. & N. 54 ; 30 L. J. Ex. 71 

Emoud's Case, Dec. 7, 1829 ; Shaw, 229 .... 

Emperor (The) of Austria v. Day and Kossuth, 3 De G. F. & J 

239 ; 30 L. J. Ch. 690 ; 7 Jur. N. S. 639 ... 

Empson v. Fairfax and another, 8 A. & E. 296 ; 3 N. & P. 385 

England v. Boiuke, 3 Esp. 80 

English V. Tottie, 1 Q. B. D. 141 ; 45 L. J. Q. B. 138 ; 21 W. R 

33 L. T. 724 

Entick r. Carrington, 11 St. Tr. 317 ; 19 How. St. Tr. 1029 . 152, 574 
Etty V. WHson (C. A.), 3 Ex. D. 359 ; 47 L. J. Ex. 664 ; 39 L. T. 

83 555 

Evans v. Gwyn, 5 Q. B. 844 73 

V. Harlow, 5 Q. B. 624 ; 13 L. J. Q. B. 120 ; D. & M. 507 ; 8 

Jm-. 571 32, 33, 79, 145, 147 

V. Harries, 1 H. & N. 251 ; 26 L. J. Ex. 31 . 291, 316, 319, 320, 330 

V. Bees, 9 C. B. N. S. 391 ; 30 L. J. C. P. 16 . . . . 335 

V. Walton, L. R. 2 C. P. 615 ; 15 W. R. 1062 . . . . 352 

Fairman v. Ives, 1 D. & R. 252 ; 5 B. & Aid. 642 ; 1 Chit. 85 

222, 224, 245, 287 
Falkland (Lord) v. Phipps, 2 Comyns, 439 ; 1 Vin. Abr. 549 . . 136 

Falkner v. Cooper, Carter, 55 130 

Falvey v. Stanford, L. R. 10 Q. B. 54 ; 44 L. J. Q. B. 7 ; 23 W. B. 

162 ; 31 L. T. 677 " . . . 292, 559 

Farlev's (Mrs.) Case, 2 Ves. Sen. 520 429 

Farrow v. Hague, 3 H. & C. 101 ; 33 L. J. Ex. 258 . . . . 569 

Faund r. Wallace, 35 L. T. 361 557 

Felkin v. Herbert, 33 L. J. Ch. 294 ; 12 W. R. 241, 332 ; 9 L. T. 635 ; 

10 Jiu\ N. S. 62 430 

Fellowes v. Hunter, 20 Up. Can. Q. B. 382 80 

FeUs, In re, Ex parte, Andrews, 4 Ch. D. 509 ; 46 L. J. Bkcy. 23 ; 25 

W. R. 382 ; 36 L. T. 38 431 

Fenn v. Dixe, 1 Roll. Abr. 58 79 

Fennell v. Tait, 1 C. M. & R. 814 526 

Fenton v. Hampton, 11 Moore, P. C. C. 347 425 

Fernandez, Ex parte, 6 H. & N. 717 ; 10 C. B. N. S. 3 ; 30 L. J. C. P. 

321 ; 7 Jur. N. S. 529, 571 ; 9 W. R. 832 ; 4 L. T. 296, 324 . 435, 437 
Field V. Gt. Northern Rv. Co. 3 Ex. D. 261 ; 26 W .R. 817 ; 39 L. T. 80 

338, 560 

Figgins V. Cogswell, 3 M. & S. 369 79, 81 

Finden v. Westlake, M. & M. 461 . . . ~ . . 228, 277, 285 

Finnerty v. Tipper, 2 Camp. 72 273, 296, 307 

Fisher r. Atkinson, 1 Roll. Abr. 43 82 

V. Clement, 10 B. & C. 472 ; 5 Man. & Ry. 730 . . . 264, 539 

V. Hughes, 25 W. R. 528 522 

V. Owen (C. A.), 8 Ch. D. 645 ; 47 L. J. Ch. 477, 681 ; 26 W. R. 

417, 581 ; 38 L. T. 252, 577 . 505, 509, 510, 511, 512, 519 
Fisher & Co. v. AppoUinaris Co., L. R. 10 Ch. App. 297 ; 44 L. J. Ch. 

500 ; 23 W. R. 460 ; 32 L. T. 628 15 



TABLE OF CASES. Fit— Gar, 

PAGB 

Fitter v. Veal, 12 Mod. 542 ; B. N. P. 7 . . . . 295, 317, 320, 552 
Fitzgerald V.Campbell, 18 Ir. J ur. 153 ; 15 L. T. 74 . . . 278,484 

V. Villiers, 3 Moo. 236 ' . . . 463 

Fitzgibbon v. Greer, I. R. 9 C. L. 294 508 

Fleetwood v. Curl or Curley, Cro. Jac. 557 ; Hob. 268 . . 70, 11(», 131 

Fleming v. Newton, 1 H. L. C. 363 14, 248, 436 

Flint V. Pike, 6 D. (fe-R. 528 ; 4 B. & C. 473 ... 176, 253, 256 

Flower's Case, Cro. Car. 211 68 

Floyd r. Barker, 12 Rep. 24 188,189 

Fonville v. Nease, Dudley, S. C. 303 151, 153 

Forbes v. King, 2 L. J. Ex. 109 ; 1 Dowl. 672 . . . . 25, 114 

Force v. Warren, 15 C. B. N. S. 806 231 

Footman v. Dunn, 4 Camj). 211 193 

Ford V. Primrose, 5 D. & R. 287 ' . . . 55 

Fores v. Johnes, 4 Esp. 97 374 

Forsdike and wife v. Stone, L. R. 3 C. P. 607 ; 37 L. J. C. P. 301 ; 16 

W. R. 976 ; IS L. T. 722 292, 336, 559 

Fortescue v. Fortescue, 24 W. R. 945 ; 34 L. T. 847 . . . .517 
Foster v. Browning, Cro. Jac. 688 55, 119 

I'. Pointer, 9 C. & P. 718 537 

y. Roberts, W. N. 1877, p. 11 562 

and others v. Lawson, 11 Moore, 360 ; 3 Bing. 452 . . 81, 367 

Foulger v. Newcomb, L. R. 2 Ex. 327 ; 36 L. J. Ex. 169 ; 15 W. R. 

1181 ; 16 L. T. 595 25, 67, 77, 115, 120, 474 

Fountain i'. Boodle el lu., 3 Q. B. 5 ; 2 G. & D. 455 . . 274, 275, 298 

V. Rogers, Cro. Eliz. 878 121 

. . 71 

. . 121 

. 58 

212, 221, 284 

273, 287, 332 

. . 154 

. 55, 106 

. . 115 



Fowell V. Cowe, Roll. Abr. 56 

Fowler v. Aston, Cro. Eliz. 268 ; 1 Roll. Abr. 43 . 

V. Dowdney, 2 M. & Rob. 119 .... 

and Avil'e v. Homer, 3 Camp. 294 

Fowles V. Bowen, 3 Tiffany (30 N. Y. R.), 20 . 202, 270 
Fox V. Broderick, 14 Ir. C. L. Rep. 453 . 
Francis v. Roose, 3 M. & W. 191 ; 1 H. & H. 36 
Franklyn v. Butler, Pasch. 11 Car. I., cited Carter, 214 

Frav V. Blackburn, 3 B. & S. 576 189 

V. Fray, 17 C. B. N. S. 603 ; 34 L. J. C. P. 45 ; 10 Jur. N. S. 

1153 23, 94, 544 

Frean v. Sargent, 2 H. & C. 293 ; 32 L. J. Ex. 281 ; 11 W. R. 808 ; 8 

L. T. 467 338 

Freethy v. Freetliy, 42 Barb. N. York, 641 347 

Frescoe v. May, 2 F. & F. 123 157, 294, 457, 549 

Friend v. London, Chatham, & Dover Ry. Co. (C. A.), 2 Ex. D. 437 ; 

46 L. J. Ex. 696 ; 25 W. R. 735 ; 36 L. T. 739 . . . . 518 

Fry V. Carne, 8 Mod. 283 56, 121 

Fryer v. Gathercole, 4 Exch. 262 ; 18 L. J. Ex. 389 ; 13 Jur. 542 . 53J^ 

V. Kinnersley, 15 C. B. N. S. 422 ; 33 L. J. C. P. 96 ; 10 Jur. 

N. S. 441 ; 12 W. R. 155 ; 9 L. T. 415 . . 201, 239, 280 

Fuller v. Fenner, 16 Barb. 333 ... . ... 313 



Gainpord 11. Tuke, Cro. Jac. 536 58, 126 

Gale V. Leckie, 2 Stark. 107 374 

Gallwey v. Marshall, 9 Ex. 294 ; 23 L. J. Ex. 78 ; 2 C. L. R. 399 . 66, 72, 

73, 83, 473 
Gardiner v. Atwater, Say. 265 . . . . . 127, 165 



Gar— Gou. TABLE OF CASES. 

PAGE 

Gardner v. Irwin, 4 Ex. D. 49 ; 48 L. J. Ex. 223 ; 27 W. R. 442 ; 40 

L. T. 357 517 

X. Slade, 13 Q. B. 796 ; 18 L. J. Q. B. 334 ; 13 Jur. 826 . . 201 

Garnett v. Bradley (C. A.), 2 Ex. D. 349 ; 46 L. J. Ex. 545 ; 25 W. R. 

653 ; 39 L. T. 725 335, 468 

(H. L.), 3 App. Gas. 944 ; 48 L. J. Ex. 1-86 ; 26 
W. R. 698 ; 39 L. T. 261 . . . 335, 468 

r. Ferrand, 6B. & C. 611 442,443 

Garrels v. Alexander, 4 Esp. 37 533 

Garret v. Taylor, Cro. Jac. 567 ; 1 Roll. ALr. 108 . . . 149, 359 
Gascoigne e,t ux. v. Ambler, 2 Lord Raym. 1004 . . . . . 85 

Gaskin v. Balls, 13 Ch. D. 324 ; 28 W. R. 552 15 

Gathercole v. Miall, 15 ^1. & W. 319 ; 15 L. J. Ex. 179 ; 10 Jnr. 337 

28, 47, 48, 242, 285, 298, 355 
Gay V. LaLouchere, 4 Q. B. D. 206 ; 48 L. J. Q. B. 279 ; .27 W. R. 413 

506, 509, olO, 512 

Geary v. Physic, 5 B. & C. 238 7 

Gee V. Pritchard, 2 Swan. 413 14 

Gelen V. Hall, 2 H. & N. 379 188 

George v. Goddard, 2 F. & F. 689 236 

Gerard (Sir G.) v. Dickenson, 4 Rep. 18 ; Cro. Eliz. 197 . . . 143 

Getting i'. Foss, 3 C. & P. 160 212 

Gibbons v. London Financial Association, 4 C. P. D. 263 ; 48 L. J. 

C. P. 514 ; 27 W. R. 619 499 

Gillett V. Bullivant, 7 L. T. Old S. 490 168, 327, 332 

Gilpin V. Fowler, 9 Ex. 615 ; 23 L. J. Ex. 152 ; 18 Jur. 293 

242, 268, 280, 535 

Glynn v. Houston, 1 Keen, 329 505 

Godard v. Gray, L. R. 6 Q. B. 139 ; 40 L. J. Q. B. 62 ; 19 W. R. 348 ; 

24 L. T. 89 ■ . 439 

Goddard v. Thompson (C. A.), 47 L. J. Q. B. 382 ; 26 W. R. 362 ; 38 

L. T. 166 560, 564 

Goddart v. Haselfoot, 1 Roll. Abr. 54 ; 1 Vin. Abr. S. a. pi. 12 . .76 
Godfrey v. OAven, Palm. 21 ; 3 Salk. 327 59 

v. Tucker, 3 N. R. 20 477 

Godson V. Home, 3 Moore, 223 ; 1 Br. & B. 7 . . . . 209, 265 
Golding V. Wharton Saltworks Co., 1 Q. B. D. 374 ; 24 W. R. 423 ; 

34 L. T. 474 499 

Goldstein v. Foss, 1 M. & P. 402 ; 6 B. & C. 154 ; 2 Y. & J. 146 ; 9 

D. & R. 197 ; 4 Bing. 489 ; 2 C. & P. 252 . . 25, 115, 120, 212 
Gompertz v. Lev^^, 9 A. & E. 282 ; 1 P. & D. 214 ; 1 W.,W. & H. 728 ; 

2 Jur. 1013 104 

Goodale i'. Castle, Cro. Eliz. 554 61, 82 

Goodbarne v. Fothergill, I71 re Harker, (C. A.) 10 Ch. D. 613 ; 27 

W. R. 587 ; 40 L. T. 408 563 

Goodburne v. Bowman, 9 Bmg. 532 27, 173, 486 

r. (as to costs), 9 Bing. 667 .... 340 

Goodtitle v. Bad title, 2 Bos. & P. 120 464 

Goslin V. Corry, 7 M. & G. 342 ; 8 Scott, N. R. 21 . . 311, 317, 320 
Gosset V. Howard, 10 Q. B. 359, 411 ; 14 L. J. Q. B. 367 ; 16 L. J. 

Q. B. 345 ; 11 Jur. 750; Car. & M. 380 .... 423, 435 

Gostling V. Brooks, 2 F. & F. 76 78, 115 

Gould V. Hulme, 3 C. & P. 625 191, 237 

Gourlcv V. PlimsoU, L. R. 8 C. P. 362 ; 42 L. J. C. P. 121 ; 2nV. R. 

683 ; 28 L. T. 598 486, 508 

xxxiv 



TABLE OF CASES. 



Gra— Hal. 



Grant v. Banque Franco-Egyplieune (C. A.), 2 C. P. D. 430 ; 47 L. J. 

C. P. 41 ; 26 W. E. G8 . . 

(C. A.), 3 C. P. D. 202 ; 47 L. J. 

C. P. 455 ; 26 W. R. 669 ; 38 
L. T. 622 

i). Gould, 2 H. Bl. 69 

V. Holland, 49 L. J. Q. B. 800 ; 29 W. P. 32 ... . 

V. Secretary of State for India, 2 C. P. D. 445 ; 25 W. R 

37 L. T. 188 

Grater v. Collard, 6 Dowl. 503 

Grave's Case, Cro. Eliz. 289 . 

Gray v. West ei ».,<;., L. R. 4 Q. B. 175 ; 9 B. & S. 156 ; 38 L. J. 

78 ; 17 W. R. 497 ; 20 L. T. 221 .... 
Greaves v. Keene, 4 Ex. D. 73 ; 27 W. R. 416 ; 40 L. T. 216 . 
Green v. Button, 2 C. M. & R. 707 

V. Chapman, 4 Bing. N. C. 92 ; 5 Scott, 340 

0. ElQ;ie and anotiier, 5 Q. B. 99 

V. Sevin, 13 Ch. D. 589 ; 41 L. T. 724 498 

GreenEeld v. Reay, L. R. 10 Q. B. 217 ; 44 L. J. Q. B. 81 ; 21 W. R. 

732 ; 31 L. T. 756 504 

Greenfield's Case, Mar. 82 ; 1 Vin. Abr. 465 80 

Greenwood v. Prick, Cro. Jac. 91 ; 1 Camp. 270 . . 6, 242, 265 

Gregory v. The Queen, 15 Q. B. 957 ; 14 L. J. M. C. 82 ; 15 Jur. 74 ; 



563 



564 

. . 195 

. 556 

848; 

196, 257 

. 295 

. . 126 

. Q. B. 

. 334 

. . 435 

91, 149, 326 

. . 50 

. 434 



5 Cox, C. C. 247 
and another v. Williams, 1 C. & K. 568 



575 
292, 320, 552 



Greville v. Chapman and others, 5 Q. B. 731 ; 13 L. J. Q. B. 172 ; D. 

& M. 553 ; 8 Jur. 189 24 

Griffiths v. Hardenburgh, 41 New York, 469 374 

V. Lewis, 7 Q. B. 61 ; 14 L. J. Q. B. 197 ; 9 Jur. 370 

8 Q. B. 841 ; 15 L. J. Q. B. 249 ; 10 Jur. 711 

80, 114, 168, 231, 233, 452 

Grimes v. Lovel, 12 Mod. 242 63 

Grissell's Case, Aug. 1879 423 

Groenvelt v. Burwell, 1 Ld. Raym. 454 ; 12 Mod. 388 . . .189 

Grove d ux. v. Hart, (1752) B. N. P. 7 348, 350 

Guerdon v. Winterstud, Cro. Eliz. 308 56 

Gurney v. Longman, 13 Ves. 493 14 

Gutsoie V. Mathers, 1 M. & W. 495 ; 2 Gale, 64 ; 5 Dowl. 69 ; 1 Twyr. 

& Gr. 694 142, 470 

Guy V. Gregory, 9 C. & P. 584 298, 325, 350 

Gwynn v. S. E. Rail. Co., 18 L. T. 738 . . . .173, 253, 548 



Haddon v. Lott, 15 C. B. 411 ; 24 L. J. C. P. 49 . 
Haire v. Wilson, 4 M. & R. 605 ; 9 B. & C. 643 . 
Hake v. Molton, Roll. Abr. 43 ... . 
Hakewell v. Ingram, 2 C. L. R. 1397 . 
Hall V. Hollander, 4 B. & C. 660 ; 7 D. & R. 133 . 

V. L. & N. W. Ry. Co., 35 L. T. 848 . 

V. Smith, 1 M. & S. 287 

V. Weedon, 8 D. & R. 140 . 

Hall's (Arthur) Case (1581) 

Hallinan v. Price, 27 W. R. 490 ; 41 L. T. 627 . 
Halsey v. Brotherhood, 15 Ch. D. 514 ; 49 L. J. Ch. 786 
43 L. T. 366 



29 W. R 



139, 322, 326 
23, 264, 265 
. 125 
24, 558 
. 352 
. 510 
79,81 
. 123 
. 423 
. 342 
9; 
. 144 



c 2 



Ham— Har. TABLE OF CASES. 

PAGE 

Hamilton & Co. r. Jolmsou & Co., (C. A.) 5 Q. B. D. 263 ; 49 L. J. Q. 

B. 155 ; 28 W. R. 879 ; 41 L. T. 461 55G 

Hammersmith Skating Rink Co. v. Dublin Skating Rink Co., 10 Ir. 

R. Eq. 235 15, 144 

Hancockv. Guerin, 4Ex. D. 3 ; 27 W. R. 112 516 

Hancocks v. Lablache, 3 C. P. D. 197 ; 47 L. J. C. P. 514 ; 26 W. R. 

402 ; 38 L. T. 753 350 

Hand v. Winton, 38 N. Y. 122 71 

Hankinson v. Bilby, 16 M. & W. 442 ; 2 C. & K. 440 . 93, 94, 106, 

107, 109, 548 
Harding v. Greening, 1 Moore, 477 ; 8 Taunt. 42 ; 1 Holt, N. P., 531 361 

Hardwick v. Chandler, 2 Str. 1138 75 

Hargrave v. Le Breton, 4 Burr. 2422 .... 142, 144. 226, 264 
Harker [In re), Goodbarne v. Fothergill, (G. A.) 10 Ch. D. 613 ; 27 W. 

R. 587 ; 40 L. T. 408 563 

Harle v. Catherall, 14 L. T. 801 40, 46, 236, 241, 

453 
Harman v. Delany, 2 Str. 898 ; 1 Barnard. 289, 438 ; Fitz. 121 . . 31, 

33 79 145 
Harnett v. Vise, (C.A.) 5 Ex. D. 307 ; 29 W. R. 7 . . 216, 307,' 336 

Harper (Sir J.) v. Beamond, Cro. Jac. 56 . . . . . .70 

Harris I). Dixon, Cro. Jac. 158 . . . . . . . . 56 ■ 

V. Fleming, 13 Ch. D. 208 ; 49 L. J. Cli. 32 ; 28 W. R. 389 . 462 

V. Petherick, (C. A.) 4 Q. B. D. Gil ; 48 L. J. Q. B. 521 ; 28 

W. R. 11 ; 41 L. T. 146 338, 560 

V. Thompson, 13 C. B. 333 .... 216, 218, 238, 270, 544 

V. Warre, 4 C. P. D. 125 ; 48 L. J. C. P. 310; 27 W. R. 461 ; 40 

L. T. 429 101, 424, 470 

Harrison v. Bevingtou, 8 C. & P. 708 . . . . .78, 81, 367 

t\ Bush, 5 El. & Bl. 344 ; 25 L. J. Q. B. 25 ; 1 Jur. N. S. 

846 198, 222, 224, 287 

25 L. J. Q. B. 99; 2 Jur. N. S. 90 . . . .' 339 

V. King, 4 Price, 46 ; 7 Taunt. 431 ; 1 B. & Aid. 161 . 57, 125 

V. Pearce, 1 F. & F. 567 ; 32 L. T. Old S. 298 ; 7 W. R. Dig. 

C. L. 51 . . 157, 159, 294, 314, 319, 331, 362, 458, 549 
■ r. Stratton, 4 Esp. 217 57 

r. Thornborough. 10 Mod. 196; Gilb. Cas. in Law & Eq. 114 

79, 97, 125, 130 
Hart r. Gumpach, L. R. 4 P. C. 439 ; 42 L. J. P. C. 25 ; 21 W. R. 

365 ; 9 Moore, P. C. C. N. S. 241 194 

and another v. Wall, 2 C. P. D. 146 ; 46 L. J. C. P. 227 ; 25 W. 

R. 373 26, 34, 113, 141, 544, 641 

Hartlepool Original Colliery Co. v. Gibb, 5 Ch. D. 713 ; 46 L. J, Ch. 

311 ; 36 L. T. 433 495 

Hartley v. Dilke, 35 L. T. 706 460 

r. Herring, 8 T. R. 130 .... 72,310,311,316,320 

■ V. Hindmarsh, L. R. 1 C. P. 533 ; 35 L. J. M. C. 254 ; 14 W. 

R. 862 ; 13 L. T. 795 ; 12 Jur. N. S. 502 . . .546 

Hartsock v. Reddick, 6 Blacki". (Indiana) 255 193 

Hartwellv. Veseyei ■!(.(•., 3 L. T. 275 238 

Harvey v. French, 1 C. & M. 11 ; 2 M. & Scott, 591 ; 2 Tyr. 585 

24, 99, 106 
Harwood v. Astley, 1 N. R. 47 236 

V. Green, 3 C. & P. 141 29, 215, 288 

et ux. V. Hardwick et ux., 2 Keb. 387 . . . . 324, 348 

xxxvi 



TABLE OF CASES. Has— Hoa. 

PAGE 

Hassell v. Capcot, 1 Vin. Abr. 395 ; 1 Roll. Al)r. 36 ... 59, 85 
Hastie v. Hastie, (0. A.) 1 Ch. D. 562 ; 45 L. J. Ch. 288 ; 24 W. R. 

564 ; 34 L. T. 13 564 

Hawkesley r. Bradsliaw, (Q. B. D.), 5 Q. B. D. 22 ; 49 L. J. Q. B. 207 ; 

28 AV. R. 167 ; 41 L. T. 653 . . 481, 492 
(C. A.) 5 Q. B. D. 302 ; 49 L. J. Q. B. 333 ; 
28 W. R. 557 ; 42 L. T. 285 

301, 481, 488, 493 
Hawley t). Reacle, W. N. 1876, p. 64; Bitt. 13U; 20Sol. J. 298; 60 

L. T. Notes, 268 301, 340, 501 

Haylock v. Sparke, 1 E. & B. 471 ; 22 L. .J. M. C. 67 . . . . 574 
Haythorn v. Lawson, 3 C. & P. 196 . . . 32, 319, 324, 365, 367 

Haywood v. Nayler, 1 Roll. Abr. 50 126 

Head v. Briscoe d ux., 5 C. & P. 485 ; 2 L. J. C. P. 101 .. . 351 
Hearne v. Stowell, 12 A. & E. 719 ; 11 L. J. Q. B. 25 ; 4 P. & D. 696 ; 

6 Jur. 458 28, 127, 158, 2G0, 550, 559 

Hedley v. Barlow, 4 F. & F. 224 43, 46, 545 

Helsliam v. Blackwood, 11 C. B. Ill ; 20 L. J. C. P. 187 ; 15 Jur. 861 

45, 170, 172, 485 
Hemincj and wife v. Power, 10 M. & W. 564 . . . . 55, 62, 123 
Hemmmqs v. Gasson, El. Bl. & El. 346 ; 27 L. .J. Q. B. 252 ; 4 Ji;r., 

N. S. 834 . . . 104, 230, 277 

Henderson r. Broomliead, 4 H. & N. 569 ; 28 L. J. Ex. 360 ; 5 Jur., 

N. S. 1175 191, 193 

Henwood v. Harrison, L. R. 7 C. P. 606 ; 41 L. J. C. P. 206 ; 20 W. 

R. 1000 ; 26 L. T. 938 44,211 

Heriot v. Stuart, 1 Esp. 437 30, 32, 49 

Hewetson v. Whittington Life Insurance Society, W. X. 1875, p. 219 ; 

Bitt. 27 ; 1 Charley, 101 ; 20 Sol. J. 79 ; 60 L. T. Notes, 67 . 502 
Hext V. Yeoiuans, 4 Rep. 15 . . . . . . • .122 

Hey V. Moorhouse and otliers, 6 Ring. N. C. 52 489 

HeVmann v. The Queen, L. R. 8 Q. B. 105 ; 21 W. R. 357 ; 28 L. T. 

■'162 586 

Hibbins v. Lee, 4 F. & F. 243 ; 11 L. T. 541 45 

Hibbs V. Wilkinson, 1 F. & F. 608 52, 230 

Hickinbotham v. Leach, 10 M. & W. 361 ; 2 Dowl. N. S. 270 

111, 178, 485 
Hicks' (Sir Baptist) Case, R. r. Garret, Hob. 215 ; Poph. 139 . 23, 383 
Higginson v. Fhiherty, 4 Ir. C. L. R. 125 . . . . . . 190 

Hishmore v. Earl and Countess of Harrington, 3 C. B. N. S. 142 . 64, 

73, 558 
Highton V. Treherne, 48 L. J. Ex. 167 ; 27 W. R. 245 ; 39 L. T. 411 

560, 562, 563 
HiU V. Campbell and Wife, L. R. 10 C. P. 222 ; 44 L. J. C. P. 97 ; 

23 W. R. 336 ; 32 L. T. 59 519 

Hill's Executors V. Metropolitan District Asylum, 49 L. J. Q. B. 668 ; 

43 L. T. 462 ; W. N. 1880, p. 98 337, 565 

Hilliard (Sir Christopher) v. Constable, Cro. Eliz. 306 ... 72 

Hinrichsr. Berndcs, W. N. 1878, p. 11 16 

Hirst V. Goodwin, 3 F. & F. 257 ^30 

Hixe V. Hollingshed, Cro. Car. 261 85 

Hoare, Ex pirie, 23 L. T. 83 382 

Hoare v. Dickson, 7 C. B. 1(34 ; 18 L. J. C. P. 158 . . . . 545 
Hoare v. Silverlock (No. 1, 1S48) ; 12 Q. B. 624 ; 17 L. J. Q. B. 306 ; 

12 Jur. 695 22, 23, 106, 239, 539, 544 

xxxvii 



Hoa— Hun. TABLE OF CASES. 

PAGE 

Iloare r. Silverlock (No. 2, 1850), 9 C. B. 20; 19 L. J. C. P. 215 

244, 560 

Hobbs V. Biyers, 2 L. E. Ir. 496 273 

Hodgkins et ux. v. Corbet et ux., 1 Str. 545 .... 85, 131 

Hodgson V. Scarlett, 1 B. & Aid. 232 190 

Hoey i: Felton, 11 C. B. N. S. 142 ; 31 L. J. C. P. 105 . . . 322 

Holland v. Stoner, Cro. Jac. 315 96 

Hollingsbead's Case, Cro. Car. 229 85 

Hollingworth v. Brodrick, 4 A. & E. 646 ; 6 X. & M. 240 ; 1 H. & 

AV. 691 466 

Hollis (Sir John) v. Briscow et ux., Cro. Jac. 58 71 

Holmes r. Catesby, 1 Taunt. 543 77,485 

V. Mountstephen, L. R. 10 C. P. 474 ; 33 L. T. 351 . . 566 

Holt, Iv re, 10 Ch. D. 168 ; 27 W. R. 485 ; 40 L. T. 207 . . . 431 

(Sir Thomas) v. Astrigg, Cro. Jac. 184 119 

c. Scholefield, 6 T. R. 691 . . . . 56, 60, 102, 123, 295 

Holwood V. Hopkins, Cro. Eliz. 787 332 

Home V. Bentinck, 4 Moore, 563 ; 2 B. & B. 130 . . . 189, 195, 

536 
Homer r. Taunton, 5 H. & N. 661 ; 29 L. J. Ex. 318 ; 8 W. R. 499 ; 

2 L. T. 512 24, 106, 539 

Honess and another v. Stubbs, 7 C. B. X. S. 555 ; 29 L. J. C. P. 220 ; 

8 W. R. 188 ; 6 Jur. N. S. 682 486 

Hooker -y. Tucker, Holt, 39 . . . . " 79 

Hooper r. Truscott, 2 Scott, 672 ; 2 Ring. N. C. 457 . 221, 265, 268 

Hopkinson v. Lord Burghlev, L. R. 2 Ch. 447 ; 36 L. J. Ch. 504 ; 15 

W. R. 543 . . ' 518 

Hopper r. Warburton, 7 L. T. 722 . . '. . . . . 454 
Hopwood i: Thorn, 8 C. B. 293 ; 19 L. J. C. P. 94 ; 14 Jur. 87 . 73, 82, 

204, 206, 211, 232, 310, 316, 320 
Home V. Hough and others, L. R. 9 C. P. 135 ; 43 L. J. C. P. 70 ; 

22 W. R. 412 507 

Horner v. JNIarshall's Administratrix, 5 Mnmford, Virginia, 466 . . 354 

r. Oyler, 49 L. J. C. P. 655 343 

Hort v. Reade, Ir. R. 7 C. L. 551 177, 483 

Horwell v. London General Omnibus Co., 2 Ex. D. 365 ; 46 L. J. Ex. 

700 ; 25 W. R. 610 ; 36 L. T. 637 481 

Houlden v. Smith, 14 Q. B. 841 ; 19 L. J. Q. B. 170 . . . .188 
Ho^y r. Prin, Holt, 652 ; 7 Mod. 107 ; 1 Brown's P. C. 64 ; 2 Salk. 

694 ; 2 Ld. Raym. 812 69, 71, 121, 236 

Howard v. Cosset, 10 Q. B. 359, 411 ; 14 L. J. Q. B. 367 ; 16 L. J. Q. 

B. 345 ; 11 Jur. 750 ; Car. & M. 380 .... 423, 435 
Howe V. Buffiilo & Erie Ry. Co., 38 Barb. (New York), 124 . . 374 
Hovt V. McKenzie, 3 Barb. Ch. R. 320, (American) . . . . 15 
Huckle V. Reynolds, 7 C. B. N. S. 114 . . . . 56, 131, 351 
Hudson r. Tooth, 2 P. D. 125 ; 25 W. R. 107 ; 35 L. T. 820 . . 431 

Huff r. Bennett, 4 Sand. (New York), 120 362 

Huggons V. Tweed, 10 Ch. D. 359 ; 27 W. R. 495 ; 40 L. T. 284 . . 500 
Hughes (-. Porral and others, 4 Moore, P. C. C. 41 . . . . 438 
Hume r. ]\Iarshall, Times, Nov. 26, 1877 ... 66, 212, 282 

Humphreys v. Miller, 4 C. & P. 7 212, 539 

V. Stanfield, Cro. Car. 469 ; Godb. 451 ; Sir W. Jones, 

388 ; 1 Roll. Abr. 38 139 

r. Stillwell, 2 F. & F. 590 236 

Hunt u. Algar and others, 6 C. & P. 245 . . .27, lOO, 159, 552 

xxxviii 



TABLE OF CASES. Hun— Jes. 

I' AGE 

Hunt v. City of London Real Property Co., 3 Q. B. D. 19 ; 47 L. J. 

Q. B. 42, 51 ; 26 W. R. 37 ; 37 L. T. 344 . . . . 561 

V. Goodlake, 43 L. J. C. P. 54 ; 29 L. T. 472 . 25, 94, 101, 117, 544 

V. Jones, Cro. Jac. 499 316 

Hunter v. Sharpe, 4 F. & F. 983 ; 15 L. T. 421 ... 51, 102 

Huntley r. Ward, 6 C. B. N. S. 514 ; 1 F. & F. 552 ; 6 Jur. N. S. 18 

199, 205, 227, 229, 264, 279 

Hurst V. Bell, 1 Bing. 1 547 

Hutcliinson v. Glover, 1 Q. B. D. 138 ; 45 L. J. Q. B. 120 ; 24 W. R. 

185 ; 33 L. T. 605, 834 .... 517,518 

V. Hartinont, W. N. 1877, p. 29 (M. R.) ... 432 

Ilutton V. Harrison, Hutton, 131 428 

I' Anson v. Stuart, 1 T. R. 748 ; 2 Sm. L. C. 6tli edit., p. 57 . 23, 131, 

177, 485 
Imperial Land Co. of Marseilles, iJe, 37 L. T. 588 ; W. N. 1877, 

p. 244 527 

Ingram v. Lawson, 6 Scott, 775 ; 5 Bing. N. C. 66 ; 7 Dowl. 125 ; 

1 Arn. 387 ; 3 Jur. 73 ; [as to plea of justification] . . . . 169 
6 Bing. N. C. 212 ; 8 Scott, 471 ; 4 Jur. 151 ; 9 C. & P. 326 

34, 132, 137, 311, 319, 320, 455,543 

Inman v. Foster, 8 AVend. 602 164 

and others v. Jenkins, L. R. 5 C. P. 738 ; 39 L. J. C. P. 258 ; 

18 W. R. 897 ; 22 L. T. 659 504 

International Financial Society v. City of Moscow Gas Co., (C. A.) 7 

Ch. D. 241 ; 47 L. J. Cli. 258 ; 26 W. R. 272 ; 37 L. T. 736 . 563 

Ireland v. Champneys, 4 Taunt. 884 355 

Irwin V. Brandwood, 2 H. & C. 960 ; 33 L. J. Ex. 257 ; 10 Jur. N. S. 

370 ; 12 W. R. 438 ; 9 L. T. 772 29, 66 

Isaacs, Ex imrU, 10 Cli. D. 1 ; 27 W. R. 297 ; 39 L. T. 520 . . 467 
Isham %\ York, Cro. Car. 15 71 

Jackson v. Adams, 2 Scott, 599 ; 2 Bing. N. C 402 ; 1 Hodges, 78, 

339 62, 273 

V. Hopperton. 16 C. B. ^. S. 829 ; 12 W. R. 913 ; 10 L. T. 

529 . ■ 203, 268, 275 

r. Mawby, 1 Ch. D. 86 ; 45 L. J. Ch. 53 ; 24 W. R. 92 . . 435 

Jacob V. Lawrence, 4 L. R. (Ir.), 579 ; 14 Cox C. C. 321 . . . 227 

v. Mills, 1 Yen tr. 117; Cro. Jac. 343 62 

James i;. Boston, 2 C. & K. 4 217,223 

V. Brook, 9 Q. B. 7 ; 16 L. J. Q. B. 17 ; 10 Jur. 541 . . . 78 

(as to costs) 16 L. J. Q. B. 168 339 

V. James, L. R. 13 Eq. 421 ; 41 L. J. Ch. 253 ; 26 L. T. 568 . 15 

V. Jolly, Bristol Summer Assizes, 1879 212 

Jarman v. Lucas, 33 L. J. C. P. 108 463 

Jarnigan r. Fleming, 43 Miss. 711 164 

Jefferies I'. Huncombe, 2 Camp. 3 ; 11 East, 226 . . . .8,22 

Jekyll V. Sir John Moore, 2 B. & P. N. R. 341 ; 6 Esp. 63 . . . 189 
Jenkins v. Morris, (C. A.) 14 Ch. D. 674 ; 49 L. J. Ch. 392 . . 561 

V. Smitli, Cro. Jac. 586 74 

Jenkinson v. Mayne, Cro. Eliz. 384 ; 1 Vin. Abr. 415 ... 55 

Jenner and another v. A'Beckett, L. R. 7 Q. B. 11 ; 41 L. J. Q. B. 14 ; 

20 W. R. 181 ; 25 L. T. 464 . . . . . 26, 33, 51, 79, 113 
Jennings and Wife v. London General Omnibus Co., 30 L. T. 266 . 566 
Jesson V. Hayes, Roll. Abr. 63 80, 137 

xxxix 



Joh— Ker. TABLE OF CASES. 

PAGE 

Johnassoii r. Bonbote, 2 Cli. D. 298 ; 45 L. J. Ch. 651 ; 24 W. R 

619 ; 34 L. T. 745 477 

Johns r. Gittings, Cro. Eliz. 239 80 

V. James, 13 Ch. D. 370 506 

Johnson x. Aylmer, Sir John, Cro. Jae. 126 119 

v. Browning;, 6 Mod. 217 178 

r. Evans, 3^Esp. 32 193, 220 

r. Hudson and Morgan, 7 A. & E. 233 ; 1 H. & W. 680 . 158, 535 

V. Lemmon, 2 EoU. Hep. 144 78 

%\ Palmer, 4 C. P. D. 258 ; 27 W. E. 941 .... 569 

V. Smith, 25 W. E. 539 ; 36 L. T. 741 520 

JoUiffe, ExjMrte, E. r. Lefroy, L. E. 8 Q. B. 134 ; 42 L. J. Q. B. 121 ; 

21 W. E. 332 ; 28 L. T. 132 442, 446 

Joj\es, Ex2Mrte,riYes. 237 430,436 

V. Baxter (C. A.), 5 Ex. D. 275 ; 28 W. E. 817 ... 561 

V. Bewicke, L. E. 5 C. P. 32 486 

r. Broadhurst, 9 C. B. 173 489 

V. Davers vel Dawkes, Cro. Eliz. 496 : 1 Eoll. Al)r. 74 

110, 130,471 

V. Davis (C. A.), 36 L. T. 415 ; W. N. 1877, p. 86 ... 562 

V. Heme, 2 Wils. 87 55, 60, 86, 122 

V. Hough (C. A.), 5 Ex. D. 115 ; 42 L. T. 108 . . . . 561 

V. Littler, 7 M. & W. 423 ; 10 L. J. Ex. 171 . . 70, 79, 124, 541 

V. McGovern, Ir. E. 1 C. L. 681 249 

V. Mackie, L. E. 3 Ex. 1 ; 37 L. J. Ex. 1 ; 16 W. E. 109 ; 17 

L. T. 151 300, 301, 487 

r. Monte Video Gas Co. (C. A.), 5 Q. B. D. 556 ; 49 L. J. Q. B. 

627 ; 28 W. E. 758 ; 42 L. T. 639 . . . . 508, 520 

V. Orchard, 16 C. B. 614 ; 24 L. J. C. P. 229 ; 3 W. E. 554 . 579 

V. Pritchard, 18 L. J. Q. B. 104 ; 6 D. & L. 529 .. . 466 

r. Stevens, 11 Price, 235 177,305,531 

Jourdain v. Palmer, L. E. 1 Ex. 102 ; 35 L. J. Ex. 69 ; 12 Jur. N. S. 

214 ; 14 W. E. 283 ; 13 L. T. 600 506 

Justice V. Gosling, 12 C. B. 39 ; 21 L. J. C. P. 94 . . . . 549 

Kain v. Farrer, 37 L. T. 469 ; ^y. N. 1877, p. 266 . . 519, 521, 535 
Kane v. Mulvany, Ir. E. 2 C. L. 402 . . . . 35, 187, 253, 259 

Kehle r. Hickeringill, 11 East, 576 u 149 

Keene i:. Euff, 1 Clarke (Iowa), 482 151 

Keenholts v. Becker, 3 Denio N. Y. 352 332 

Keighlev v. Bell, 4 F. & F. 763 193, 195 

Kelly r. Partington, 4 B. c^ Ad. 700 ; 2 X. & M. 46U ; 5 B. c^ Ad. 645 ; 

3N. &M. 116 89,114,275.326 

V. Sherlock, L. E. 1 Q. B. 686 ; 35 L. J. Q. B. 209 ; 12 Jur. 

N. S. 937 ; 15 W. E. Dig. C. L. 64 .41, 292, 295, 307, 559 

r. Tinling, L. E. 1 Q. B. 699 ; 35 L. J. Q. B. 231 ; 14 W. E. 

51 ; 13 L. T. 255 ; 12 Jur. N. S. 940 . . . . 28, 47 
Kemp V. Neville, 10 C. B. N. S. 523 ; 31 L. J. C. P. 158 ; 9 W. E. 

C. L. Dig. 84 ; 4 L. T. 640 189 

Kendillon v. Maltbv, 1 Car. & M. 402 ; 2 M. & Eob. 438 ; 1 Dow & 

Clark, 495 168, 190, 332 

Kennedy v. Hilliard, 10 Ir. C. L. E. 195 ; 1 L. T. 578 . . .192 
Kent t'. Lewis, 21 W. E. 413 334. 

V. Stone, Bristol Summer Assizes, 1880 315 

Kerr v. Shedden, 4 C. & P. 528 322 

xl 



TABLE OF CASES. Ker— Lau. 

PAGE 

Kerry (Earl of) v. Tliorley, 4 Taunt. 355 ; 3 Camp. 214 n. . . 5, 22 

Kershaw v. Bailey, 1 Exch. 743 ; 17 L. J. Ex. 129 . . 224, 236, 239, 

271,285 

Keyworth v. Hill, 3 B. & Aid. 685 372 . 

Keyzor and another v. Newcomb, 1 F. & F. 559 ... 31, 159 
Kielley v. Car.son and other.'^, 4 Moore, P. C. C. 63 . . . 424, 425 

Kilmore v. Al-duolah, 27 L. J. Ex. 307 559 

Kine V. Sewell, 3 M. & W. 297 . . . . 204, 217, 226, 231, 233, 238 

King V. Bagg, Cro. Jac. 331 123 

^ V. Davenport, 4 Q. B. D. 402 ; 48 L. J. Q. B. 606 ; 27 W. R. 798 522 

V. Hoare, 13 M. & W. 494, 504 457 

(Col.) V. Lake, 2 Ventr. 28 ; Hardres, 470 ... 5, 74 

V. Waring and ux. 5 Esp. 15 ...... 168, 232 

V. Watts, 8 C. & P. 615 209, 218 

V. Wood, 1 N. & M. (South Car.) 184 25 

and another v. Hawkesworth, 4 Q. B. D. 371 ; 48 L. J. Q. B. 

484 ; 27 W. E. 660 ; 41 L. T. 411 . .338, 570 
Kinnahan v. McCullogh, Jr. R. 11 C. L. 1 . . . . 106, 242 

Kirby v. Simpson, 10 Exch. 358 ; 3 Dowl. 791 ... . 188, 487 
Knight V. Gibbs, 1 A. & E. 43 ; 3 N. & M. 467 .. . 326, 327 

V. Purcell. 49 L. J. Ch. 120 ; 28 W. R. 90 ; 41 L. T. 581 . 340 

and wife v. Lynch, 9 H. L. C. 577 ; 8 Jur. N. S. 724 ; 5 

L. T. 291 . . . . 86, 88, 312, 319, 323, 324, 325, 326, 349 

Knobell v. Fuller, Peake's Add. Cas. 139 306 

Koenig v. Ritchie, 3 F. & F. 413 52, 229 

Kramer v. Waymark, L. R. 1 Ex. 241 ; 35 L. J. Ex. 148 ; 12 Jur. 

N. S. 395 ; 14 W. R. 659 ; 14 L. T. 368 355 

Krehl v. Burrell (C. A.), 10 Ch. D. 420 ; 48 L. J. Ch. 252 ; 27 W. R. 

234 ; 39 L. T. 461 561 

Kynaston r. Mackinder, 47 L. J. Q. B. 76 ; 26 W. R. Dig. 62 ; 37 

L. T. 390 336 



Lafoxe v. Smith, 3 H. & N. 735 ; 28 L. J. Ex. 33 ; 4 Jur. N. S. 1064 300 
Costs and payment into Court, 4 H. & N. 158 ; 

5 Jur. N. S. 127 301 

Lake v. King, 1 Lev. 241 ; 1 Saund. 131 ; Sid. 414 ; 1 Mod. 58 

152, 187, 222, 242, 245, 284 
Lake and another v. Pooley, W. N. 1876, p. 54 ; Bitt. 121 ; 20 Sol. J. 

280 ; 60 L. T. Notes, 250 517 

Lamb i-. Walker, 3 Q. B. D. 389 ; 45 L. J. Q. B. 451 ; 26 W. E. 775 ; 

38 L. T. 643 317 

Lamb's Case, 9 Rep. 60 156, 386 

Laming r. Gee (C. A.), 28 W. R. 217 565 

Lancaster v. French, 2 Str. 797 67, 80 

Lane v. Applegate, 1 Stark. 97 489 

Langley, Ex parte, Ex parte Smith, Re Bishop, 13 Ch. D. 110; 49 

L. J. Bkcy. 1 ; 28 W. R. 174 ; 41 L. T. 388 .... 432 

Langridge v. Campbell, 2 Ex. D. 281 ; 46 L. J. Ex. 277 ; 25 W. R. 

351 ; 36 L. T. 64 341 

Large v. Large, W. N. 1877, p. 198 569 

Latimer v. Western Morning News, 25 L. T. 44 . . . . • 368 
Laughton v. Bishop of Sodor and Man, L. R. 4 P. C. 495 ; 42 L. J. 

P. C. 11 ; 21 W. R. 204 ; 28 L. T. 377 ; 9 Moore, P. C. C. N. S. 

318 230,235 

xli 



Lau— Lon. TABLE OF CASES. 

PAGE 

Laureuson r. The Dublin Metropolitan Junction Railway Co., 37 L. 

T. 32 461 

Lauretta, The, 4 P. D. 25 ; 48 L. J. Prob. 55 ; 27 W. R. 902 ; 40 

L. T. 444 565 

Law V. Harwood, Sir W. Jones, 196 ; Palm. 529 ; Cro. Car. 140 141 
Lawless x\ Anglo-Egyptian Cotton and Oil Co., L. R. 4 Q. B. 262 ; 
10 B. & S. 226 ; 38 L. J. Q. B. 129 ; 17 W. R. 498 

152, 235, 242, 283, 284, 368, 532 

Lawrence v. Smith, Jacob, 471 374 

V. Woodward. Cro. Car. 277 ; 1 Roll. Abr. 74 . . . 56 

Lay V. Lawsou, 4 Ad. & E. 795 241, 246, 283 

Leach's Case, 11 St. Tr. 307 ; 19 How. St. Tr. 1002 . . . .574 
Lee V. Colyer, W. N. 1876, p. 8 ; Bitt. 80 ; 1 Charley, 86 ; 20 Sol. J. 

177 ; 60 L. T. Notes, 157 494 

- V. Huson, Peake, 223 273 

- V. RUey, 18 C. B. N. S. 722 327 

Le Fanu and another v. Malcomson, 1 H. L. C. 637 ; 8 Ir. L. R. 418 ; 

13 L. T. 61 32, 129, 130, 319, 324, 365, 367 

Lefroy x\ Burnside, 4 L. R. Ir. 340 ; 41 L. T. 199 ; 14 Cox, C. C. 260 

514, 619 

4 L. R. Ir. 556 171 

Leicester (Earl of) v. Walter. 2 Camp. 251 305, 306 

Le Merchant, Attorney- General v., 2 T. R. 201, n 581 

Lentner v. Merfield, Tnm><, May 6th, 1880 204 

Lethbridge v. Cronk, 44 L. J. C. P. 381 508 

Leversage v. Smith, Cro. Eliz. 710 ....... 56 

Levet's Case, Cro. Eliz. 289 78, 91, 350 

Levi V. Milne, 4 Bing. 195 ; 12 Moore, 418 . 105, 130, 550, 552, 558 

Le^y V. Lawson, 3 E. B. & E. 560 ; 27 L. J. Q. B. 282 .. . 249 

v. Moylan, 19 L. J. C. P. 308 ; 1 L. M. & P. 307 . . 443, 446 

Lewes v. Walter [1617J, 3 Bulstr. 225 ; Cro. Jac. 406, 413 ; Roll. Rep. 

444 131, 165 

(Earl of) V. Bamett, 6 Ch. D. 252 ; 47 L. J. Ch. 144 ; 26 W. R. 

101 432 

Lewis r. Clement, 3 B. & Aid. 702 ; 3 Br. & B. 297 ; 7 Moore, 200 

29, 99, 172, 256, 291, 486 

V. Lew, E. B. & E. 537 ; 27 L. J. Q. B. 282 ; 4 Jur. N. S. 970 

44, 99, 176, 243, 245, 247, 248, 256 

r. Walter, 4 B. & Aid. 605 . . . . 45, 163, 164, 176, 253 

and Herrick v. Chapman, 2 Smith, 16 N. Y. R. 369 . . . 269 

Lewknor v. Cruchley and wife, Cro. Car, 140 55 

Leycroft V. Dunker, Cro. Car. 317 79 

Leyman v. Latimer and others, 3 Ex. D. 15, 352 ; 46 L. J. Ex. 765 ; 

47 L. J. Ex. 470 ; 25 W. R. 751 ; 26 W. R. 305 ; 37 L. T. 360, 

819 ; 14 Cox, C. C. 51 . . . 24,58,171,177,485,497,60 3 
Liberia (Republic of) v. Rove, 1 App. Cas. 139 ; 45 L. J. Ch. 297 ; 24 

AV. R. 967 ; 34 L. T. 145 431 

Lincoln (Earl of) v. Fisher, Cro. Eliz. 581 ; Ow. 113 ; Moore, 470 . 440 
Lister v. Perryman, L. R. 4 H. L. 521 ; 39 L. J. Ex. 177 ; 18 W. R. 

Dig. 14 ; 23 L. T. 269 214, 278 

Littler c. Thompson, 2 Beav. 129 46, 429, 430 

Litton V. Titton, 3 Ch. D. 793 ; 24 W. R. 962 500 

Lloyd r. Jones, 7 B. & S. 475 . . 559 

V. Morky, 5 L. R. Ir. 74 515 

London v. Eastgate, 2 RoUe's Rep. 72 77 

xlii 



TABLE OF CASES. Lov— Mai. 

PAGE 

Lovejoy v. Murray, 3 Wall. (Sup. Ct.), 1 458 

Lovett V. Wilier, 1 Roll. 4G9 143 

Lowe V. Harewood, Sir W. Jones, 196 ; Cro. Car. 140 . . . . 138 

V. Lowe (C. A.), 10 Ch. D. 432 ; 48 L. J. Ch. 383 ; 27 W. R. 

309 ; 40 L. T. 236 561 

Lows, Exfartc, hire Lows (C. A.), 7 Ch. D. 160 ; 47 L. J. Bank. 24 ; 

26 W. R. 229 ; 37 L. T. 583 564 

Lucan (Earl ol) v. Smith, 1 H. & N. 481 ; 26 L. J. Exch. 94 ; 2 Jur. 

N. S. 1170 483 

Lumby v. Allday, 1 Tyr. 217 ; 1 C. & J. 301 . . .66, 78, 84, 293 

Lumley v. Gye, 2 E. & B. 216 322, 326 

Lynam v. Cowing, 6 L. R. Ir. 259 191, 254 

Lynch v. KniKht and wife, 9 H. L. C. 577 ; 8 Jur. N. S. 724 ; 5 L. T. 

291 86, 88, 312, 319, 323, 324, 325, 326, 319 

Lyon V. Tweddell, 13 Ch. D. 375 506 

M. MoxHAM, The (C. A.), 1 P. D. 107 ; 46 L. J. P. D. & A. 17 ; 24 

W. R. 597, 650 ; 34 L. T. 559 527 

Macaulay v. Shakell and others, 1 Bligh, N. S. 96 . . . . 527 

Maegill's Case, 2 Fowl. Ex. Pr. 404 429 

Macintosh v. Great Western Railway Co., 22 L. J. Ch. 72 . . . 510 
Mackay v. Ford, 5 H. & N. 792 ; 29 L. J. Ex. 404 ; 6 Jur. N. S. 587 ; 

8 W. R. 586 190 

Mackereth v. Glasgow and South-Western Railway Co., L. R. 8 Ex. 

149 ; 42 L. J. Ex. 82 ; 21 W. R. 339 ; 28 L. T. 167 . . . 461 

Macleod v. Wakley, 3 C. & P. 311 52, 276, 534 

McAleece, In re, Ir. R. 7 C. L. 146 437 

McAndrew v. Barker (C. A.), 7 Ch. D. 701 ; 47 L. J. Ch. 340 ; 26 W. 

R. 317 ; 37 L. T. 810 563 

McCabe v. Foot, 18 Ir. Jur. (vol. xi., N. S.) 287 ; 15 L. T. 115 . . 57 

M'Cauley v. Thorp, 1 Chit. 685 525 

M'Corquodale v. Bell and another, Weekly Notes, 1876, p. 39 ; Bitt. 

Ill ; 20 Sol J. 260 ; 60 L. T. Notes, 232 . . . 509 

and another v. Bell and another, 1 C. P. D. 471 ; 45 L. 

J. C. P. 329 ; 24 W. R. 399 ; 35 L. T. 261 . . 518 

McConibe v. Gray, 4 L. R. (Ir.) 432 435 

McCombs V. Tuttle, 5 Blackford (Indiana), 431 152 

McDermott, In re, L. R. 1 P. C. 260 ; L. R. 2 P. C. 341 ; 38 L. J. 

P. C. 1 ; 20 L. T. 47 438 

M'Dougall V. Claridge, 1 Camp. 267 235 

M'Elveney v. Connellan, 17 Ir. C. L. R. 55 . . . • ^ • • ^^^ 
McFadzen v. Mayor and Corporation of Liverpool, L. R. 3 Ex. 279 ; 16 

W. R. 48 505 

McGregor v. Gregory, 11 M. & W. 287 ; 12 L. J. Ex. 204 ; 2 Dowl. 

N. S. 769 24, 176, 244 

V. Thwaites, 3 li & C. 24 ; 4 D. & R. 695 . . . 165, 193 

McTntvie v. McBean, 13 Upper Canada, Q. B. Rep. 534 ... 224 

M'Loughlin v. D^vyer (1), Ir. R. 9 C. L. 170 . . . . 483, 515 

McNally v. Oldham, 16 Ir. C. L. R. 298 ; 8 L. T. 604 . . .249 
M'Pherson v. Daniels, 10 B. & C. 263 ; 5 M. & R. 251 . 162, 163, 164, 

165, 174, 175, 471 
McSte])hens v. Carnegie, 28 W. R. 385 ; 42 L. T. 309 .... 462 

Magrath v. Finn, I. R. 11 C. L. 152 242 

Maguire v. Knox, 5 Ir. C. L. R. 408 102, 483 

Maitland v. Brarawell, 2 F. & F. 623 214, 238 

xliii 



Mai— Mea. TABLE OF CASES. 

PAGE 

Maitland and others r. Golduey and another, 2 East, 426 163, 367, 537 

Malachy v. Woper and another, 3 Bing. N. C. 371 ; 3 Scott, 723 ; 

2 Hodges, 217 . . . '" 139,141 

Malonev r. Bartley, 3 Camp. 210 .... 156, 193, 359, 384 
Manhy'r. Witt, 18 C. B. 544 ; 25 L. J. C. P. 294 ; 2 Jur. N. S. 1004 

203, 226, 285 
Manchester, &c., Eaihvay Co. and London and North-Western Eail- 

way Co. V. Brooks, 2 Ex. D. 243 ; 46 L. J. Ex. 244 ; 25 W. E. 

413 ; 36 L. T. 103 370 

Manning v. Averv, 3 Keb. 153 ; 1 Vin. Abr. 553 140 

V. Clement, 7 Bing. 362 ; 5 M. & P. 211 . . . 547, 549 

Mansel, In re, Ehodes v. Jenkins (C. A.), 7 Ch. D. 711 ; 47 L. J. Ch. 

870 ; 26 W. E. 361 ; 38 L. T. 403 563 

Mansergh, Re, 1 B. & S. 400 ; 30 L. J. Q. B. 296 . . . . 195 
Mansfield v. Childerhouse, 4 Ch. D. 82 ; 46 L. J. Ch. 30 ; 25 W. E. 

68 ; 35 L. T. 590 508 

Mapleson v. Masini, 5 Q. B. D. 144 ; 49 L. J. Q. B. 423 ; 28 W. R. 

488 ; 42 L. T. 531 495 

Marlborough (Duke of). Ex parte, 5 Q. B. 955 ; 13 L. J. M. C. 105 ; 

1 Dav. & iler. 720 381, 440 

Marriott v. Marriott, 26 W. R. 416 ; Weekly Notes, 1878, p. 57 . . 498 
Marsden and wife v. Lancashire and Yorkshire Eailway Co., 42 L. T. 

631 337 

Marsh v. Isaacs, 45 L. J. C. P. 505 557 

Marshall v. Martin, L. R. 5 Q. B. 239 ; 39 L. J. Q. B. 85 ; 18 W. E. 

378 ; 21 L. T. 788 335 

Martano v. Mann (C. A.), 14 Ch. D. 419 ; 49 L. J. Ch. 510 ; 42 

L. T. 890 ; 28 W. R. Dig. 67 346 

Martin v. Bannister, 4 Q. B. D. 212, 491 ; 48 L. J. Ex. 300 ; 27 W. E. 

431 446 

V. Butchard, 30 L. T. 732 518 

V. Loei, 2 F. & F. 654 106, 109, 549 

V. Mackonochie, 3 Q. B. D. 730 431 

V. Strong, 5 A. & E. 535 ; 1 N. & P. 29 ; 2 H. & W. 336 

238, 239, 310 

V. Van Schaith, 4 Paige, 479 355 

r. Wright, 6 Sim. 297 14 

Martin's Case, 2 Russ. & My. 674 n 429, 434 

Martyn v. Burlings, Cro. Eliz. 589 75 

- — V. Williams, 1 H. & N. 817 ; 26 L. J. Ex. 117 . . . 537 
Marzetti v. Williams, 1 B. & Ad. 415 ....... 8 

Masham v. Bridges, Cro. Car. 223 71 

Mason v. Brentini, 15 Ch. D. 287 ; 29 W. R. 126 ; 42 L. T. 726 ; 43 

L. T. 557 . . . . 342 

V. Jennings, Sir T. Ravm. 401 9 

V. Thompson, Hutt. 38 122 

Massey v. Allen, 12 Ch. D. 807 ; 48 L. J. Ch. 692 ; 28 W. R. 243 . 356, 467 

Matthew v. Crass, Cro. Jac. 323 310 

Mawe V. Pigott, Ir. R. 4 C. L. 54 26 

May V. Brown, 3 B. & C. 113 ; 4 D. & R. 670 . . 29, 297. 307, 537 

Mayhew v. Locke, 7 Taunt. 63 '. . 442 

Mayne v. Fletcher, 4 M. & R. 312 ; 9 B. & C. 382 . 6, 154, 159, 387, 531 
Mead, In re, Ex juuie Cochrane, L. R. 20 Eq. 282 ; 44 L. J. Bkcv. 

87 ; 23 W. R. 726 ; 32 L. T. 508 \ 431 

V. Daubigny, Peake, 168 272, 276 

xliv 



TABLE OF CASES. Mea— Mot 

VAGE 

Meagher v. Moore, 3 Smith, 135 ; in error, 1 Taunt. 39 . . . 88, 311 
Mears v. Griffin, 1 I\r. & Gr. 796 ; 2 Scott, N. 11. 15 . . . . 559 

Medhurst v. Balam, cited 1 Sider. 397 312 

Meggs y. Griffith, Cio. Eliz. 400 ; Moore, 408 . . . . 127, 165 
Mercer ■}?. Sparks, (1586) Owen, 51 ; Noy, 35 472 

V. Whall, 5 Q. B. 447, 462, 463 ; 14 L. J. Q. B. 267, 272 . . 530 

Mercers Co., Ex parte, 10 Ch. D. 481 ; 48 L. J. Ch. 384 ; 27 W. R. 

424 335 

^[ercier v. Cotton, 1 Q. B. D. 442 ; 46 L. J. Q. B. 184 ; 24 W. U. 566 ; 

35 L. T. 79 501, 510 

Merest v. Harvey, 5 Taunt. 442 83 

Merryweather n.'Nixan, 8 T. R. 186 ; 2 Sm. L. C. 546 (8th ed) . 359, 372 
Metropolitan Inner Circle Railway Co. v. Metropolitan Railway Co., 
5 Ex. D. 196 ; 49 L. J. Ex. 505 ; 28 W. R. 510 ; 42 

L. T. 591 523 

. Omnihus Co. v. Hawkins, 4 H. & N. 87 ; 28 L. J. Ex. 

201 ; 5 Jur. N. S. 226 ; 7 W. R. 265 ; 32 L. T. Old S. 

281 . . G . . . 2, 32, 178, 368, 369, 516 

Michel V. Wilson, 25 W. R. 380 474 

Mickelthwaite v. Fletcher, 27 W. R. 793 436 

Milissich V. Llovds, 46 L. J. C. P. 404 ; 36 L. T. 423 ; 13 Cox, C. C. 

575 251, 252, 254 

W, X. 1875, p. 200 ; Bitt. 5 ; 1 Charley, 119 ; 20 

Sol. J. 31 ; 60 L. T. Notes, 33 . " . . . 527 
Miller v. Buckdun, 2 Buls. 10 122 

V. David, L. R. 9 C. P. 118 ; 43 L. J. C. P. 84 ; 22 W. R. 

332 ; 30 L. T. 58 90, 117, 323, 474 

V. Hope, 2 Shaw Sc. App. Cas. 125 189 

Milman v. Pratt, 2 B. & C. 486 ; 3 D. & R. 728 141 

Mills and wife v. Spencer and wife (1817), Holt, N. P. 533 165, 302, 305 
Minnehaha, The, L. R. 3 A. & E. 148 ; 19 W. R. 304 ; 23 L. T. 

747 512 

Minors -y. Leeford, Cro.Jac. 114 ..... 109,119,122 

Mitchell V. Brown, 3 Inst. 167 ; 1 Roll. Abr. 70 96 

Moises V. Thornton, 8 T. R. 303 ...... 69, 531 

Moody V. Steward, L. R. 6 Ex. 35 ; 40 L. J. Ex. 25 ; 19 W. R 161 ; 

23 L. T. 465 567, 569 

Moon V. Towers, 8 C. B. N. S. 611 361 

]\Ioone V. Rose, L. R. 4 Q. B. 486 ; 38 L. J. Q. B. 236 . . ••435 

Moor (Sir George) v. Foster, Cro. Jac. 65 70 

V. Roberts, 3 C. B. N. S. 671 ; 26 L. J. C. P. 246 . 505, 508 

ats. 1 M. & S. 284 305 

Moore v. Meagher (in error), 1 Taunt. 39 ; (below) 3 Smith, 135 88, 311 

V. Terrell and others, 4 B. & Ad. 870 ; 1 N. & M. 559 . 30, 485 

Mordaunt v. Mordaunt, 39 L. J. Prob. & Matr. 59 . . . 264, 353 

More V. Bennett (1872), 48 N. Y. R. (3 Sickel), 472 . . . 24, 106 

Morgan v. Lingen, 8 L. T. 800 23 

Morris v. Freeman and wife, 3 P. D. 65 ; 47 L. J. P. D. & A. 79 ; 27 

W. R. 62 ; 39 L. T. 125 347, 553 

*;. Langdale, 2 B. & P. 284 . . . . 79,81,111,326 

Morrison v. Belcher, 3 F. & F. 614 . . . . . . . 50 

and another v. Harmer and another, 3 Bing. N. C. 759 ; 

4 Scott, 524 ; 3 Hodges, 108 . . . 34, 51, 170, 486 

Mortimer v. IM'Callan, 6 ]\I. & W. 58 8, 536 

Mot (it ux. V. Butler, Cro. Car. 236 122 

xlv 



Moii-0'Br TABLE OF CASES. 

Moimtney r. Watton, 2 B. & Ad. 673 99, 170, 172 

Mulkern v. Ward, L. R. 13 Eq. G19 ; 41 L. J. Ch. 464 ; 20 W. R. 

Dig. 38 ; 26 L. T. 831 15, 43 

Mullett V. HultoB, 4 Esp. 248 302 

]\[ulligan V. Cole and others, L. R. 10 Q. B. 549 ; 44 L. J. Q. B. 153 ; 

33 L. T. 12 26, 117, 228, 544 

Miilock, Re, 33 L. J. Pr. & Matr. 205 ; 10 Jur. N. S. 1188 ; 13 W. R. 

278 430 

Munroe v. Pilkington, 31 L. J. Q. B. 89 ; 8 Jur. N. S. 557 ; 10 W. R. 

Dig. 37 ; 6 L. T. 21 439 

Murdoch v. Warner, 4 Cli. D. 750 ; 46 L. J. Ch. 121 ; 25 W. R. 207 ; 

35 L. T. 748 454 

Murphy v. Halpin, Ii-. R. 8 C. L. 127 52, 229 

Murrey's Case, 2 Buls. 206 ; 1 Vin. Abr. 440 124 

Musgrave v. Bovev, 2 Str. 946 73 

Myers v. Defries, ^2\mes, July 23, 1877 248, 269 

3 Q. B. D. 95, 459 ; 4 Ex. D. 176 ; 48 L. J. 446 ; 

27 W. R. 191 ; 40 L. T. 795 ; 5 Ex. D. 15, 180 ; 

28 W. R. 406 ; 41 L. T. 659 . . . . 269, 339 

Nadex v. Micocke (1684\ 3 Lev. 166 ; Sir T. Jones, 235 ; 2 Ventr. 172 ; 

3 Salk. 325 . . ' 558 

Napier v. Daniel and another, 3 Scott, 417 ; 3 Bing. N. C. 77 ; 2 

Hodges, 187 558 

National Funds Assurance Co., In re (C. A.), 4 Ch. D. 305 ; 46 L. J. 

Ch. 183 ; 25 W. R. 151 ; 35 L. T. 689 563 

Neale and others r. Clark and others, 4 Ex. D. 286 ; 41 L. T. 438 . 342 

Neve V. Cross, Sty. 350 55 

New British Co. v. Peed, 26 W. R. 354 ; W. N. 1878, p. 52 . . 517 
Newley v. Van Often, L. R. 7 Q. B. 293 ; 41 L. J. Q. B. 148 ; 20 W. 

R. 383 ; 26 L. T. 164 . . ■ 461 

Newman v. Bailey, 2 Chit. 665 177, 485 

V. Zachary, Aleyn, 3 140 

Newton, Ex parte, re Pigott, 11 Cox, C. C. 311 587 

V. Chaplin, 10 C. B. 56 536 

V. Stubbs, 3 Mod. 71 470 

and wife v. Boodle and others, 4 C. B. 359 ; 18 L. J. C. P. 73 

347, 553 

Nicholl V. Jones, 2 H. & M. 588 ; 13 W. R. 451 518 

Nicholson v. Jackson, W. N. 1876, p. 38 494 

V. Lj'ue, Cro. Eliz. 94 72 

Nixon r. Harvey, 8 Ir. C. L. Rep. 446 483 

Noel V. Noel, 13 Ch. D. 510 ; 28 W. R. 720 ; 42 L T. 352 . , .467 

Norman v. Johnson, 29 Beav. 77 • 338 

Norris v. Smith, 10 A. & E. 188 453 

North V. Bilton, 4Q. B. D. 99; 48 L.J. Q. B. 161 ; 27 W. R. 247 ; 39 

L. T. 608 336 

Northampton's (Earl of) Case, 12 Rep. 134 127, 162 

Nutt's (Elizabeth) Case, Fitzg. 47 ; 1 Barnard. 306 . 161, 363, 413 

Oake and another v. Moorecroft, L. R. 5 Q. B. 76 ; 39 L. J. Q. B. 15; 

18W. R. 115 463 

Oastler v. Henderson (C. A.), 2 Q. B. D. 575 ; 46 L. J. Q. B. 607 ; 37 

L. T. 22 560 

O'Brien v. Bryant, 16 M. & W. 108 ; 16 L. J. Ex. 77 ; 4 D. & L. 341 172 

xlvi 



TABLE OF CASES. O'Br— Pea. 

PAGE 

O'Brien v. Clement, 15 M. & W. 435 ; 15 L. J. Ex. 285 ; 3 D. & L. 

676 ; 10 Jar. 395 . . . . 265, 301, 493 
16 M. & W. 159, 166 ; 16 L. J. Ex. 76, 77 ; 4 

D. & L. 343, 563 21, 23, 24 

Oddy V. Lord George Paulet, 4 F. & F. 1009 . . 79, 227, 240, 286 

Odger V. Mortimer, 28 L. T. 472 52, 557 

O'Donogliue v. Hussey, Ir. R. 5 C. L, 124 . . 52, 168, 229. 230, 281 
Ogden V. Turner, Holt, 40 ; 6 Mod. 104 ; 2 Salk. 696 . 54, 57, 59, 85 

O'Keefe v. Cardinal Cullen, Ir. R. 7 C. L. 319 487 

Oldham V. Peake, 2 Wm. Bl. 959 ; Cowp. 275 . . 55, 96, 121, 125, 323 
Oliver v. Bentinck, 3 Taunt. 456 ... . 189, 196, 197, 257 

Olmsted v. Miller, 1 Wend. 506 312 

Onslow V. Home, 2 W. Bl. 750 ; 3 Wils. 177 54, 70, 71, 139, 236, 293, 311 

Onslow's Case, 9 Q. B. 219 ; 12 Cox, C. C. 358 447 

Orpwood V. Barkes, or Parkes, 4 Bing. 261 ; 12 Moore, 492 . 79, 115, 597 
Osborn v. London Dock Co., 10 Exch. 698 ; 24 L. J. Ex. 140 . . 504 
Owens v. Woosman, L. R. 3 Q. B. 469 ; 9 B. & S. 243 ; 37 L. J. Q. B. 

159 ; 16 W. R. 932 ; 18 L. T. 357 566 

Oxford d ux. v. Cross, 4 Rep. 18 59, 85, 86 

Padmore r. Lawrence, 11 A. & E. 380 ; 3 P. & D. 209 ; 4 Jar. 458 

220, 221, 274, 284, 285 

Paine v. Mondford, Cro. Eliz. 747 . 56 

Palmer v. Boyer, Owen, 17 ; Cro. Eliz. 342 74 

V. Cohen, 2 B. & Ad. 966 355 

V. Roberts, 22 W. R. 577, n. ; 29 L. T. 403 . . . .566 

Pannell v. Nunn (C. A.), 28 W. R. 940 560 

Paris V. Levy, 9 C. B. N. S. 342 ; 30 L. J. C. P. 11 ; 7 Jur. N. S. 289; 

9 W. R. 71 ; 3 L. T. 324 ; S. C. at Nisi Prius, 2 F. & F. 71 

34, 51, 188 
Parkes v. Prescott and another, L. R. 4 Ex. 169 ; 38 L. J. Ex. 105 ; 17 

• W. R. 773 ; 20 L. T. 537 156, 361, 362 

Parkins and wife v. Scott and wife, 1 H. & C. 153; 31 L. J. Ex. 331 ; 

8 .Jur. N. S. 593 ; 10 W. R. 562 ; 6 L. T. 394 167, 323, 329, 330, 332 
Parmiter v. Coupland, 6 M. & W. 105 ; 9 L. J. Ex. 202 ; 4 Jur. 701 

27, 28, 40, 43, 95, 550 

Parret v. Carpenter, Noy, 64 ; 2 Cro. Eliz. 502 73 

Parsons v. Surgey, 4 F. & F. 247 243, 285 

V. Tinling, 2 C. P. D. 119 ; 46 L. J. C. P. 230 ; 25 W. R. 255 ; 

35 L. T. 851 335, 469 

Pasquin's Case, cited 1 Camp. 351 307 

Pashler v. Vincent, 8 Ch. D. 825 ; 27 W. R. 2 432 

Pater, In re, 5 B. & S. 299 ; 33 L. J. M. C. 142 ; 12 W. R. 823 ; 10 L. 

T. 376 429 

r. Baker, 3 C. B. 831 ; 16 L. J. C. P. 124 ; 11 .Jur. 370 138, 144, 271 

Paterson's Case, 1 Brown (Scotch), 629 399 

Pattison v. Jones, 3 M. & R. 101 ; 8 B. & C. 578 . . 2()2, 209, 287 
Payne, Eximrte, In re Cross, 11 Ch. D. 539, 550 ; 27 W. R. 808 ; 40 

L. T. 563 "... 564 

V. Beuwmorris, 1 Lev. 248 '72, 310 

V. Courthope, 20 Sol. J. 724 487 

Peacham's Case, Cro. Car. 125 ; 2 Cobhett's St. Tr. 870 . . .411 
Peake v. Oldham, Cowp. 275 ; 2 W. Bl. 959 . . 55, 96, 121, 125, 323 

V. Pollard, Cro. Eliz. 214 94 

Pearce v. Ornsby, 1 M. & Rob. 455 99, 296, 539 

xlvii 



Pea— Poe. TABLE OF CASES. 

PAGE 

Pearce v. Rogers, 2 F. & F. 137 471 

V. Watts, L. E. 20 Eq. 492 ; 44 L. J. Cli. 492 ; 23 W. E. 771 477 

Peard v. Jones, Cro. Car. 382 . . . . . . . 68, 74 

Pearson v. Lemaitre, 5 M. & G. 700 ; G Scott, N. E. 607 ; 12 L. J. 

Q. B. 253 ; 7 Jur. 748 .. . 99, 272, 274, 276, 296, 303, 551 
Pemberton r. Colls, 10 Q. B. 461 ; 16 L. J. Q. B. 403 ; 11 Jiir. 1011 

72, 73, 295 

Penfokl V. AVestcote, 2 Bos. & P. N, E. 335 109 

Pennyuian v. Eabanks, Cro. Eliz. 427 ; 1 Vin. Abr. 551 . . . 143 

Peppiatt and wife v. Smith, 33 L. J. Ex. 239 ... . 506, 507 

Perren v. Monmouthshire Ej. Co., 11 C. B. 855 491 

Perry's (Captain) Case, 2 Dick. 794 ; 2 Atk. 469 .... 429 

Perryman v. Lister, L. E. 4 H. L. 521 ; 39 L. J. Ex. 177 ; 18 W. R. 

Dig. 14 ; 23 L. T. 269 214, 278 

Peterborough (Lord) v. AVilliams, 2 Sh(jw. 506 ; or in Butts's ed. 650 . 136 

Pettibone v. Simpson, 66 Barb. 492 316 

Pharmaceutical Society z'. London and Provincial Supply Association, 
4 Q. B. D. 313 ; 48 L. J. Q. B. 387 ; 27 W. R. 709 ; 
40 L. T. 584 369 

(C. A.) 5 Q. B. D. 310 ; 49 L. J. Q. B. 338 ; 28 W. R. 

608 ; 42 L. T. 569 369 

(H. L.) 5 App. Cas. 857 ; 49 L. J. Q. B. 736 ; 28 

W. R. 957 ; 43 L. T. 389 369 

Philips V. Badby, cited 4 Rep. 19 73 

Phillimore v. Machon, 1 P. D. 481 402, 403 

PhiUips V. Barnet, 1 Q. B. D. 436 ; 45 L. J. Q. B. 277 ; 24 W. E. 345 ; 

34 L. T. 177 152 

x\ Jansen, 2 Esp. 624 65, 75, 580 

f . L. & S. W. Ey. Co., 4 Q. B. D. 406 ; 48 L. J. Q. B. 693 ; 27 

W. R. 797; 40 L. T. 813 . . 292 

(C. A.) 5 Q. B. D. 78 ; 49 L. J. Q. B. 

233 ; 28 W. E. 10 ; 41 L. T. 121 . . 292 

r. Eouth, L. E. 7 C. P. 287 511 

■ and another v. Barron and another, W. N. 1876, p. 54 ; Bitt. 

119 ; 20 Sol. J. 280 ; 60 L. T. Notes, 249 . 507 
Phospliate Sewage Co. v. Hartmont, 25 W. R. 743 ... . 432 
Pickering v. Stevenson, L. E. 14 Eq. 322 ; 41 L. J. Ch. 493 ; 20 W. E. 

654 ; 26 L. T. 608 591 

Pictoii V. Jackman, 4 C. & P. 257 206, 211, 279 

Pierce v. Ellis, 6 Ir. C. L. R. 55 236, 241, 260 

Pierpoint v. Cartwright, 5 C. P. D. 139 ; 28 W. E. 583 ; 42 L. T. 295 569 

Pierrepoint's Case, Cro. Eliz. 308 59 

Pine's (Hugh) Case, Cro. Car. 117 410 

Pinero v. Goodlake, 15 L. T. 676 254 

Pisani v. Lawson, 6 Bing. N. C. 90 ; 5 Scott, 418 . . . 356, 467 

Pitt v. Donovan, 1 M. & S. 639 142 

Pitten V. Chatterburg, W. N. 1875, p. 248 ; Bitt. 62 ; 1 Charley, 106 ; 

20 Sol. J. 139 ; 60 L. T. Notes, 122 . . . . * . .508 
Plum V. Normantun, Iron. Co. AV. N. 1876, p, 105 ; Bitt. 140 ; 20 

Sol. J. 340 ; 60 L. T. Notes, 303 523 

Plunket V. Gilmore, Fortescue, 211 8 

Plunkett V. Cobbett, 2 Selw. N. P. 1042 ; 5 Esp. 136 . . . , 274 

Pocock V. Nash, Comb. 253 73 

Poe V. Mondlord, Cro. Eliz. 620 , . . 76 

Poe's Case, 1 Vin. Abr. 440 ; 2 Buls. 206 122, 124 

xlviii 



TABLE OF CASES. Pol— Ram. 

PAGE 

Polini V. Gray, 11 Ch. D. 741 ; 28 W. R. 81 ; 40 L. T. 801 . . . 4G7 
rollard, //( re, L. R 2 P. C. 106 ; 5 JMoore, P. C, C. N. S. Ill ; 17 

W. R. Dig. 4 438 

V. Green, Bristol Summer Assizes, 1880 452 

V. Lyon, 1 Otto, (91 U. IS.) 225 317 

Pool V. Saclieverel, 1 P. Wms. 675 430 

Poole V. Whitcomb, 12 C. B. N. S. 770 552 

Popham V. Pickburn, 7 H. & N. 801 ; 31 L. J. Ex. 133 ; 8 Jiir. N. S. 

179 ; 10 W. R. 324 ; 5 L. T. 846 . . . 165, 176, 261, 283 

Poplett V. Stockdale, Ry. & Moo. 337 374 

Potter V. Chambers, 4 C. P. D. 457 ; 48 L. J. C. P. 274 ; 27 W. R. 414 341 

V. Cotton (C. A.) o Ex. D. 137 ; 49 L. J. Ex. 158 ; 28 W. R. 

160 ; 41 L. T. 460 560 

V. Home and Colonial Assurance Co., (not reporte 1) . . 492 

Powell V. Jones, 1 Lev. 297 68, 75 

Power V. Shaw, 1 Wils. 62 85 

Pratt, m re, 7 A. & E. 27 580 

V. Gardner, 2 Cush. (Mass.) 63 190 

Preston v. Pinder, Cro. Eliz. 308 55, 123 

Price V. Harris, 10 Bing. 331 557 

V. Hutchison, L. R. 9 Ec^. 534 ; 18 W. R. 204 .... 431 

V. Jenkings, Cro. Eliz. 865 . . . . . . . . 471 

Prickett v. Gratrex, 8 Q. B. 1020 445 

Pridham V. Tucker, Yelv. 153 ; Hob. 126 ; Cart. 214 . . . . 114 

Prinne v. Howe, 1 Brown Pari. C. 64 71 

Prior and another v. Wilson, 1 C. B. N. S. 95 . . . . 80, 225 

Proby V. Mar<£uess of Dorchester, 1 Lev. 148 136 

Prosser v. Rowe, 2 C. & P. 422 178 

Proud V. Hawes, Cro. Eliz. 171 ; Hob. 140 75 

Prowse V. Loxdale, 3 B. & S. 896 ; 32 L. J. Q. B. 227 . . . . 545 
Prudential Assurance Co. v. Knott, L. R. 10 Ch. 142 ; 44 L. J. Ch. 

192 ; 23 W. R. 249 ; 31 L. T. 866 . . . . 13, 15, 436, 454 

Prudhomme v. Eraser, 2 A. & E. 645 339 

Pudsey Coal Gas Co. v. Corporation of Bradford, L. R. 15 Eq. 167 ; 42 

L. J. Ch. 293; 21 W. R. 286; 28L.T. 11 31 

Purcell V. Sowler, 1 C. P. D. 781 ; (C. A.) 2 C. P. D. 215 ; 46 L. J. 

C. P. 308 ; 25 W. R. 362 ; 36 L. T. 416 . . 41, 46, 165, 260, 283 

Purdey v. Stacey, 5 Burr. 2698 70 

Purnell v. G. W. Ry. Co. and Harris, (C. A.) 1 Q. B. D. 636 ; 45 L. J. 

Q. B. 687 ; 24 W. R. 720, 909 ; 35 L. T. 605 . . . . 557 

Pybus V. Scudamore, Arn. 464 529 

Pye V. Wallis, Carter, 55 63 

QuiN V. Hession, 4 L. R. (Ir.) 35 ; 40 L. T. 70 . . 230, 307, 494 



Rafael v. Ongley, 24 W. R. 857 ; 34 L. T. 124 . . . . 460 

Rainy v. Bravo, L. R. 4 P. C. 287 ; 20 W. R. 873 . . . 471, 536 

V. Justices of Sierra Leone, 8 Moo. P. C. 47 . . . . 439 

Ralph V. Carrick, 11 Ch. D. 873 ; 28 W. R. 67 ; 40 L. T. 505 . . 564 

Ram V. Land ey, Hutt. 113 193 

Ramadge v. Ryan, 9 Bing, 333 ; 2 M. & Sc. 421 . . . . 76, 559 
Ramsay, In re, L. R. 3 P. C. 427 ; 7 Moo. P. C. N. S. 263 . . . 439 
Ramsdale v. Greenacre, 1 F. & F. 61 . . . . 67, 69, 80, 473 

xlix d 



Ram— R. 



TABLE OF CASES. 



27 



Ramsdeu v. Brearlej^ (on demurrer), L. R. 10 Q. B. 147 ; 44 L. J. Q. B. 

46 ; 23 W. E. 294 ; 32 L. T. 24 

(as to interroj^atories), 33 L. T. 322 ; W. N. 1875, 

p. 199 ; 1 Charley, 96 ; Bitt. Addenda ; 20 Sol. J. 30 . 
Ratcliff V. Michael, Cro. Jac. 331 
Rawlings et ux. v. Norbury, 1 F. & F. 341 
Rea, In re John, 2 L. R. Jr. 429 ; 14 Cox, C. C. 139 . 

4 L. R. Ir. 345 ; 14 Cox, C. C. 256 

Read's Case, Cro. Eliz. 645 ...... 

Read v. Ambridge, 6 C. & P. 308 

Reade v. Woodroffe, 24 Beav. 421 .... 

Redman v. Pyne, 1 Mod. 19 

Redondo v. Chaytor (C. A.), 4 Q. B. D. 453 ; 48 L. J. Q. B. 697 

W. R. 701 ; 40 L. T. 797 

Redston v. Eliot, Cro. Eliz. 638 ; 1 Roll. Abr. 49 . 
Reeve v. Holgate, 2 Lev. 62 .... . 

Reignald's Case, Cro. Car. 563 

Rendall v. Hayward, 5 Bing. N. C. 422 . 

Republic of Costa Rica v. Erlanger, 1 Ch. D. 171 ; 45 L. J. Ch. 145 ; 24 

W. R. 151 ; 1 Charley, 111 

Republic of Liberia v. Roye, 1 App. Cas. 139 ; 45 L. J. Ch. 297 ; 24 

W. E. 697 ; 34 L. T. 145 . . 

Restell and wife v. Steward, (1) W. N. 1875, p. 231 ; 1 Charley, 87 ; 
Bitt. 46 ; 20 Sol. J. 99 ; 60 L. T. Notes, 87 . 479, 

(2) W. N. 1875, p. 249 ; 1 Charlev, 89 ; 

Bitt. 65 ; 20 Sol. J. 140 ; 60 L. T. Notes, 123 \ 
Revis V. Smith, 18 C. B. 126 ; 25 L. J. C. P. 195 ; 2 Jur. N. S. 614 . 



77, 



PAGE 

346 

514 
118 
111 
447 
443 
127 
109 
510 
65 

356 
121 
124 
124 
559 

502 



431 



154, 186, 236, 259, 268, 385, 
1 Lord Raym. 486 



R. V. Abingdon (Lord), 1 Esp. 226 

— V. Aickies, 1 Leach, 330 

— V. Alme and Nutt, 3 Salk. 224 ; 

— V. Almon, 5 Burr. 26S6 161, 363, 364, 

— V. Wibnot's Notes of Opinions and Judgments, p. 253 429, 

— V. Amphlit, 4 B. & C. 35 ; 6 D. & R. 125 . . . . 152, 159, 

— V. Annet, 3 Burn Ec. L. 386 (9th edition) 

— V. Archer, 2 T. R. 203 n 

— V. Aspinall, 2 Q. B. D. 48 ; 46 L. J. M. C. 145 ; 25 W. R. 283 ; 36 

L. T. 297 

— V. Atwood, Cro. Jac. 421 

— V. Aunger, 12 Cox. C. C. 407 

— V. Baker, 1 Mod. 35 

— V. Baldwin, 8 A. & E. 168 591, 

— V. Barker, 1 F. & F. 326 

— V. Barnard, Tivies, Dec. 17, 1878, and Jan. 13, 1879 . 387, 540, 

— V. Bate, 1 Dougl. 387 534, 

— V. Baxter, 3 Mod. 69 

— V. Bedford, Mich. 12 Ann., cited in 2 Str. 789 ... 417, 

— !v. Beere, 12 Mod. 219 ; Holt. 422 ; Carth. 409 ; 2 Salk. 417, 646 ; 

1 Ld. Raym. 414 .... 152, 386, 417, 418, 533, 

— r. Benlield, 9 Burr. 285 

— V. Bickerton, 1 Stra. 498 . 

— V. Birmingham and Gloucester Rv. Co., 3 Q. B. 223 ; 10 L. J. M. C 

136 . . . . ' 

— V. Bliss (Clerk), K. B. MSS. 5 Geo. I. Roll. 733 ; Sid. 219 

— V. Bolton, 1 Q. B. 73 



481 

485 
191, 
193 
387 
536 
377 
414 
437 
531 
399 
589 

586 
399 
593 
440 
592 
581 
593 
592 
104 
420 

580 
587 
592 

577 
417 
443 



1 



TABLE OF CASES. R— R. 

PACK 

R. r. Boxcall, 4 A. & E. 513 578 

— V. Bradlaugh and Besant, 2 Q. B. D. 569 ; 4G L. J. M. C. 286 ; 

25 W. R. Dig. 91 . . . . 6, 587 

(C. A.) 3 Q. B. D. G07 ; 48 L. J. M. C. 

5 ; 26 W. R. 410 ; 38 L. T. 118 ; 14 
Cox, C. C. 68 574 

— V. Brewster, Dig. L. L. 76 420, 421 

— V. Brooke, 2 T. R. 190 595 

— V. Brown (Dr.), 11 Mod. 86 ; Holt, 425 . . . 23, 116, 411, 421 

— V. Budd, 5 Esp. 230 582 

— V. Bunts, 2 T. R. 683 589 

— V. Burdett, 4 B. & Aid. 95, 314 . . . . 154, 386, 388, 398, 417, 

419, 574, 575, 581, 589 

— V. Burford, 1 Ventris, 16 441 

— V. Burks, 7 T. R. 4 575 

— V. Burn, 7 A. & E. 190 441, 593 

— V. Canning, 19 St. Tr. 370 581 

— V. Canterbury, Arclibisliop of, 11 Q. B. 649 403 

— V. Carden, Sir Robert, 5 Q. B. D. 1 ; 49 L. J. M. C. 1 ; 28 W. R. 

133 ; 41 L. T. 504 ; 14 Cox, C. C. 359 . . . 43, 390, 573 

— V. Carlile, Mary, 3 B. & Aid. 167 . . . 250, 351, 384, 399 

— V. Carlile, Richard, 3 B. & Aid. 161 ; 1 Chit. 451 . 384, 399, 401, 532 

— V. Casey, 13 Cox, C. C. 614 578 

— V. Castro, L. R. 9 Q. B. 219 ; 12 Cox, C. C. 358 . . . 430, 433 

— V. Caudwell, 2 Den. C. C. 372, n 588 

— V. Chipping Sodbury, 3 N. & M. 104 579 

— V. Christian, 12 L. J. M. C. 26 580 

— V. Clement, 4 B. & Aid. 218 . . . . 249, 258, 429, 431, 434 

— V. Clendon, 2 Str. 789 398 

— V. Clerk, 1 Barnard. 304 130, 359, 387, 413 

— V. Cobbett [1804], 29 Howell's St. Tr. 1 . . . . 10, 417, 418 

— V. CockshaAv, 2 N. & Man. 378 594 

— V. Coghlan, 4 F. & F. 316 379 

— V. Cohen and Jacob, 1 Stark. 516 585 

— V. Collins, 9 C. & P. 456 415, 416, 417, 418, 419 

— V. Cooper, 8 Q. B. 533 ; 15 L; J. Q. B. 206 . 25, 155, 333, 361, 363, 

386, 581 

— V. Creevey, 1 M. & S. 273 .... 186, 236, 250, 259, 268 

— V. Cripps, Times, Nov. 4th and 18th, 1880 573 

— V. Critchley, 4 T. R. 129 n 376 

— V. Cruse et ux., 2 Moo. C. C. 53 ; 8 C. & P. 541 . . . .351 

— V. Cuthell, 27 Howell's St. Tr. 642 10, 386 

— V. Darby, 3 Mod. 139 ; Comb. 65 ; Carth. 14 . . . 376, 441 

— V. Davison, 4 B. & Aid. 329 429 

— V. Dean of St. Asaph, 3 T. R. 428 n. ; 4 Dougl. 73 ; 21 St. T. 1043 10, 

377, 585, 586 

— V. De Berenger, 3 M. & S. 67 378 

— V. D'Eon, 1 Wm. Bl. 501 ; 3 Burr. 1514 ; Dig. L. L. 88 . . 383 

— V. Dewhurst, 5 B. & Ad. 405 . . . ' 579 

— V. Dodd, 2 Sess. Cas. 33 161, 363 

— V. Dover, 2 Harg. St. Tr. 457 159 

— V. Drury and others, 18 L. J. M. C. 189 ; 3 C. & K. 190 . . 587 

— u Duffy, 9 Ir. L. R. 329 ; 2 Cox, C. C. 45 . . . .390,583 

— r. Dugdale, 1 E. & B. 425 ; 22 L. J. M. C. 50 ; 17 Jur. 546 ; Dears. 

C. C. 64 405 

li d 2 



R— R. TABLE OF CASES. 

PAGE 

R. V. Eaton, 31 How. St. Tr. 927 398 

— V. Edgar, 2 Sess. Cas. 29 ; 5 Bac. Abr. 199 98 

— V. Eues (1732), Andr. 229 ; 4 Bac. Abr. Libel, A. (2), p. 452 . 22(j 

— V. Evans and another, 8 Dowl. 451 424, 435 

— V. Eve and Parlby, 5 A. & E. 780 ; IN. & P. 229 . . 593, 594 

— V. Eyre, Leeds Assizes^ Times, Nov. 6, 1880 584 

— V. Farr, 1 Keb. 629 .72, 440 

— V. Faulkner, 2 Mont, and Ayr. 321, 322 . . . . 429, 437 

— V. Fisher and others, 2 Camp. 563 ....... 255 

— V. Fleet, 1 B. & Aid. 379 255 

— V. Foulkes, 1 L. M. & P. 720 ; 20 L. J. M. C. 196 . . . . 578 

— V. Fowler and Sexton, 4 B. & Aid. 273 588 

— V. Franceys, 2 A. & E. 49 531, 591 

— V. Francis, L. E. 2 C. C. R. 128 ; 43 L. J. M. C. 97 ; 22 W. R. 663 ; 

30 L. T. 503 272 

— V. Francklin, 9 St. Tr. 255 ; 17 Howell's St. Tr. 626 . . 414, 417 

— V. Garret, Sir Baptist Hicks' Case, Hob. 215 ; Popham, 139 . . 116 

— V. Gathercole, 2 Lewin, C. C. 237 .... 126, 376, 377 

— V. Giidwood, 1 Leach, 169 ; East, P. C. 1120 . . . . 581, 583 

— V. Goldsmith, L. R. 2 C. C. R. 79 ; 42 L. J. M. C. 94 ; 21 W. R. 

791 ; 28 L. T. 881 586 

— V. Goldstein, Manasseh, 3 Brod. & B. 201 ; 7 Moore, 1 ; 10 Price, 

88 ; R. & R. C. C. 473 470, 574 

— V. Gordon, 2 Leach, 581 530 

— t'. Lord Geo. Gordon, 22 Howell's St. Tr. 177 . . . 383,427 

— V. Granfield, 12 Mod. 98 441 

— V. Grant and others, 5 B. & Aid. 101 ; 3 N. & M. 106 . . .584 

— V. Gray, 10 Cox, C. C. 184 381 

— V. Gregoiy, 8 A. & E. 907 381 

— V. Griffin, 1 Sess. Cas. 257 ........ 377 

— V. Gutch, Fisher, and Alexander, Moo. & Malk. 433 . 161, 364, 386 

— V. Hall, 1 Str. 416 399, 535 

— V. Halpin, 9 B. & C. 65 ; 4 M. & R. 8 589 

~ V. Harrison, 3 Keb. 841 ; Ventr. 324 ; Dig. L. L. 66 . . 420, 421 

— V. Hart, 1 Wm. Bl. 386 232 

— V. Hart and White, 30 How. St. Tr. 1168, 1345 ; 10 East, 94 . . 428 

— V. Harvey and Chapman, 2 B. & C. 257 . . . 385, 414, 584 

— V. Haswell and Bate, 1 Doug. 387 534, 592 

— V. Head and Marks, Times, Oct. 27th & 28th, 1879 . . . . 24 

— V. Hetherington, 5 Jur. 529 399, 588 

— V. Hicklin, L. R. 3 Q. B. 371 ; 37 L. J. M. C. 89 ; 16 W. R 801 ; 

18 L. T. 395 ; 11 Cox, C. C. 19 . . . 6, 250, 399, 404, 407 

— V. Higgins, 2 East, 5 ' . . . . 378 

— V. Hobhouse, 2 Chit. 210 424 

— V. Hoggan, Times, Nov. 4th, 1880 577 

— V. Holbrook and others, 3 Q. B. D. 60 ; 47 L. J. Q. B. 35 ; 26 W. 

R. 144 ; 37 L. T. 530 ; 13 Cox C. C. 650 

159, 363, 364, 365, 385, 583 
4 Q. B. D. 42; 48 J. L. Q. B. 113 ; 27 W. R. 313 ; 39 L. T. 
536 ; 14 Cox C. C. 185 . . . 159, 363, 364, 365, 385, 583 

— V. Holland, 4 T. R. 457 577 

— %\ Holt, 5 T. R. 436 384, 582, 584, 587 

— V. Home, 11 St. Tr. 264 ; Cowp. 672 ; 20 HoAvell's St. Tr. 651 

104, 417, 575, 595, 651 

— V. Hunt and Leigh Hunt, 31 Howell's St. Tr. 408 . . . . 417 

lii 



TABLE OF CASES. 



R-E. 



R. V. 

— V. 



Hunt and others, 3 B. & Aid. 444 
lUve, Dig. L. L. 83 . 
Ingram, 1 Salk. 384 
Jaines, 5 B. & Aid. 894 
Jeffe, 15 Vin. Abr. 89 . 
Jenour, 7 Mod. 400 . 
Jewell, 7 E. & B. 140 ; 26 L. J. Q 
Jolinson, Hon. Robt., 6 East, 583 

Tr. 103 

7 East, 65 ; 3 Smith, 94 ; 29 Howell St. Tr. 103 

Jolliffe, 4 T. R. 285 

Jones, 1 Stra. 185 

Joule, 5 A. &E. 539 

Kearsley, Dig. L. L. 69 



B. 177 

2 Smith, 591 ; 29 How. St. 



PAGE 

579 
399 
351 
434 

428 
377 
578 



41 



578 

581 

. ' 381 

431, 576 

. 579 

. 414 



Kinnersley, 1 Wm. Bl. 294 381 

Knell, 1 Barnard. 305 359, 387, 413, 617 

Knight, Bac. Abridg. A. 2 (Liljel) 242 

Labouchere (Lambri's Case), 14 Cox, C. C. 419 . . 392, 583 

Lambert and Perry, 2 Camp. 398 ; 31 How. St. Tr. 340 

27, 99, 414, 582 
Langley, 2 Lord Raymond, 1029 ; 2 Salk. 697 ; 6 Mod. 125 ; 



Holt, 654 
Larkin, Dears. C. C. 365 ; 23 L. J. M. C. 125 . 

Larrieu, 7 A. & E. 277 

Latimer, 15 Q. B. 1077 ; 20 L. J. Q. B. 129 ; 15 Jur. 314 

LawTence, 12 Mod. 311 

Lawson, 1 Q. B. 486 



441, 445 
586, 587 

. 380 
590, 595 

. 417 
, . 381 



Leafe, Andrews, 226 441 

Ledger, Times, Jan. 14, 1880 50, 399 

Lee, 12 Mod. 514 444 

— 5 Esp. 123 244 

Lefroy, Ex parte Jolliffe, L. R. 8 Q. B. 134 ; 42 L. J. Q. B. 121 ; 

21 W. R. 332 ; 28 L. T. 132 441,442,446 

Liverpool (Mayor of) and others, 41 L. J. Q. B. 175 ; 20 W. R. 

389 ; 26 L. T. 101 591 

Llanfaethly, 2 E. & B. 940 ; 23 L. J. M. C. 33 ; 17 Jur. 1123 . 536 

Lofield, 2 Barnard. 128 253, 255 

Lovett, 9 C. & P. 462 . . . 154, 155, 333, 386, 415, 417, 533 
Lowe and Clements, 8 Excli. 097 ; 22 L. J. Ex. 262 . . . 356 

Mann, 4 M. & S. 337 585 

Marsden, 4 M. & S. 164 575 

Marsliall, 4 E. & B. 475 382, 593 

Martin, 2 Camp. 100 582 

Matthews, 15 How. St. Tr. 1323 104 

Mayo, 1 Keb. 508 ; 1 Sid. 144 440 

Mtin, 3 T. R. 597 592 

Moore, 3 B. & Ad. 188 326 

Morton, 1 Dowl. N. S. 543 579 

Moxon, 2 Mod. St. Tr. 356 399 

Newhouse, 22 L. J. Q. B. 127; 1 L. & M. 129 . . . .590 
Newman, 1 El. & Bl. 268 ; 22 L. J. Q. B. 156 ; Dears. C. C. 85 ; 

17 Jur. 617 ; 3 C. & K. 252 . 171, 174, 549, 584, 588, 649 

1 E. & B. 558 ; 22 L. J. Q. B. 156 .. . 584, 649 

Nottingham Journal, 9 Dowl. 1042 380 

Nun, 10 Mod. 186 441 



liii 



R-R. 



TABLE OF CASES. 



R. V. 

- V. 

V. 

V. 



PAGB 

Nutt (Eliz.), [1728] 1 Barnard. 306 ; Fitzg. 47 . . 161, 363, 413 

Nutt (Richard) [1754], Dig. L. L. 68 421 

Oastler, L. R. 9 (J. B. 132 ; 43 L. J. Q. B. 42 ; 22 W. R. 490 ; 29 

L. T. 830 579 

Odgers, 2 Moo. & Rob. 479 577 

Onslow and others, L. R. 9 Q. B. 219 ; 12 Cox C. C. 358 430, 448 
Orme and Nutt, 1 Lord Rayin. 486 ; 3 Salk. 224 .. . 377 
Osbom, 2 Barnard. 138, 166 ; Kel. 230 . . . . 377, 381 

Owen, 18 HoweU'sSt. Tr. 1203, 1228 ; Dig. L. L. 67 . 417, 423 

Paine, Samuel, 5 Mod. 163 6, 154, 387 

Paine, Thomas, 22 Howell's St. Tr. 358 . ■ . . .421 

Palmer, 5 E. & B. 1024 579 

Paty, 2 Ld. Raym. 1108 424,435 



Peacham, Cro. Car. 125 ; 2 Cobbett's St. Tr. 870 
Peltier, 28 How. St. Tr. 617 
Penny, 1 Ld. Raymond, 153 
Philipps, 6 East, 464 . 
Pigott, 11 Cox, C. C. 44 . 
Plumer, Russ. & Ry. 164 . 
Pocock, 2 Str. 1157 
Pooley (Bodmin, 1857) 
Rainer, 2 Barnard. 293 ; 
Rea (1), 2 L. R. Ir. 429 ; 
— (2), 4 L. R. Ir. 345 ; 
Redman, L. R. 1 C. C. R, 



Dig. L. L. 125 . 
14 Cox, C C. 139 
14 Cox. C. C. 256 
12 ; 39 L. J. M. C. 



89 



411 

. 357, 383 

. . 441 

. 377 

421, 584 

. 581 

. . 441 

. 398 

. . 422 

. 447 

. . 443 

. 379 

27, 416, 420, 423 

440, 441 

. 428, 441, 445 

. 23, 24 

. 192 

. . 23 

. 580 



3 T. R. 428, n 
. 10, 37 



C. C. 371 



V. Reeves, Peake's Add. Cas. 84 . . . 

V. Revel, 1 Str. 420 

V. Rogers, 2 Ld. Raymond, 777 ; 7 Mod. 28 . 
V. Rosenberg, Times, Oct. 27th and 28th, 1879 
■V. Salisbury, 1 Ld. Raym. 341 
V. Saunders, Sir T. Raym. 201 . 

V. Seton, 7 T. R. 373 

V. Seymore, Winchester Spring Assizes, IS&O 
V. Shebbeare, 3 T. R. 430, n. ... 

V. Sliiijlev (Dean of St. Asaph), 4 Dougl. 73 ; 

St. Tr. 1043 

v. Sidney, 9 How. St. Tr. 817 .. . 

V. Skinner, LofFt. 55 . 

V. Skipworth. L. R. 9 Q. B. 230 ; 12 Cox 

V. Slaney, 5 C. & P. 213 . 

V. Smitlison, 4 B. & Ad. 862 . 

V. Southerton, 6 East, 126 379 

V. Spencer, 8 Dowl. 127 579 

V. Spragg and another, 2 Burr. 929 588 

V. Stanger, L. R. 6 Q. B. 352 ; 40 L. J. Q. B. 96 ; 19 W. R. 640 : 

24 L. T. 266 532, 591, 592 

V. Steel, 1 Q. B. D. 482 ; 45 L. J. Q. B. 391 ; 24 W. R. 638 ; 34 
L. T. 283 ; 13 Cox, C. C. 159 

(C. A.) 2 Q. B. D. 37 ; 46 L. J. Vl 

35 L. T. 534 .... 
V. Steward, 2 B. & Ad. 12 . 
^^ Stockdale, 22 Howell's St. Tr. 238 
V. Sidlivan, 11 Cox, C. C. 44 ... 

V. Sutton, 4 M. & S. 548 . '. . ' 582 

V. Taylor, 3 B. & C. 502 ; 5 D. & R. 422 577 

liv 



. 179 
377, 413 
21 

585, 586 

. 386, 411 

189, 191, 192 

428, 430, 433 

534, 580, 581 

. 594 



. 595 
C. 1 ; 25 W. R. 34 ; 

. . 595 

. 534 

423 

27, 45,415, 421, 427,585 



TABLE OF CASES. 



R— Ric 



PAGE 

R. V. Taylor, 1 Ventr. 293 ; 3 Keb. 607 397, 399 

— V. Templar, 1 Nev. & P. 91 . . " 579 

— V. Thomas, 4 M. & S. 442 578 

— V. Topham, 4 T. R. 126 376, 384, 385, 576, 586 

— V. Townsend, 4 F. & F. 1089 ; 10 Cox, C. C. 356 . . . . 390 

— V. Truelove, 5 Q. B. D. 336 ; 49 L. J. M. C. 57 ; 28 W. R. 413 ; 42 

L. T. 250 ; 14 Cox, C. C. 408 406 

— V. Truscott, (not reported) 392, 534 

— V. Tucker, Ry. & M. 134 582 

— V. Tutcliin, 5 St. Tr. 527 ; 14 Howell's St. Tr. 1095 ; 2 Ld. Raym. 

1061 ; 1 Salk. 50 ; 6 Mod. 268 . . . 104, 377, 410, 417, 575 

— V. Unwin, 7 Dowl. 578 580 

— r. Veley, 4F. &F. 1117 . 

— V. Vint, 27 How. St. Tr. 627 . 

— V. Waddington (1800), 1 East, 143 . 

— V. (1822), 1 B. & C. 26 

— V. Walter, 3 Esp. 21 . 

— V. Ward, 10 Cox, C. C. 42 . 

— V. Watson (1808), 1 Camp. 215 . 

— V. Watson, James (1817), 2 Stark. 116 

— V. Watson and others (1788), 2 T. R. 199 
~ V. Webster, 3 T. R. 388 , 

— V. Wegener, 2 Stark. 245 

— V. AYeltje, 2 Camp. 142 

— c. Whalley and others, L. R. 9 Q. B. 219 ; 12 Cox, C. C 

— V. Wliite and others, 1 Camp. 359 .... 

— V. Whitehouse and Tench, Dears. C. C. 1 

— V. Wiatt, 8 Mod. 123 

— V. Wilkes, 4 Burr. 2527 ; 2 Wils. 151 

— V. Willett, 6 T. R. 294 



. . 229 
. 383 

. 378, 587 

. 398, 401 

159, 364, 380 

. 379 

. . 581 

. 535 

97, 381, 428, 535, 581 

. 592 

383, 575, 580 

. 440 

358 430, 448 

. 45, 381, 427 

588 

161,386 
399, 404, 414, 574, 577, 595 
591 



381, 592 

6, 397, 399, 401 

. . 589 



Williams, 5 B. & Aid. 595 

— V. 26 How. St. Tr. 656 

— V. Loft. 759 

— V. 2 Roll. Rep. 88 

— V. John, Dig. L. L. 69 . . . . . 

— V. Sir Wm. (1686), 2 Shower, 471 ; Comb. 18 ; 13 How 

St. Tr. 1370 

— V. Wilson, 14 L. J. M. C. 3 

— V. 2 Moo. C. C. 52 

_ y. 4 T. R. 487 

— V. Winterbotham, 22 How. St. Tr. 875 .. . 

— ('. Withers, 3 T. R. 428 

— V. Woodfall, 5 Burr. 2661 

— V. Woolmer, 12 A. & E. 422 

— V. Woolston, 2 Str. 834 ; Fitzgib. 66 ; 1 Barnard. 162 

— V. World, The, 13 Cox, C. C. 305 .... 

— V. Wrennum, Pop. 135 



411 

414 



187 

. 580 

. . 123 

. 589 

. . 421 

. 585, 589 

414, 585 

. 592 

397, 398, 399 

. 594 

. . 428 



Wright, 8 T. R. 293 187, 243, 259, 382 

— V. Wrightson, 2 Salk. 698 ; 11 Mod. 166 ; 2 Roll. Rep. 78 ; 4 Inst. 

181 440 

— V. Yates, 12 Cox, C. C. 233 379, 575 

Reynolds v. Harris, 3 C. B. N. S. 279 ; 28 L. J. C. P. 26 . . . 341 
Rhodes t). Bryant, 2 F. & F. 205 . ^65 

V. Livei'pool Investment Co., 4 C. P. D. 425 . . . . 

Rice V. Pidgeon, Comb. 161 ........ 

Iv 



569 

80 



Ric-Rus. TABLE OF CASES. 

Eicliards v. Morgan, 4 B. & S. 641 ; 33 L. J. Q. B. 114 ; 12 W. E. 162 ; 

9 L. T. 662 518 

V. Eicliards, 2 M. & Eob. 557 . . . . 165, 231, 233, 306 

Eicbardson v. Allen, 2 Chit. 657 123 

V. Willis, L. E. 8 Ex. 69 ; 42 L. J. Ex. 15, 68 ; 27 L. T. 

828 ; 12 Cox, C. C. 298, 351 590 

Eiclimond (Duke of) V. Costelow, 11 Mod. 235 136 

Eiding V. Smith, 1 Ex. D. 91 ; 45 L. J. Ex. 281 ; 24 W. E. 487 ; 34 L. 

T. 500 . . . .78, 84, 86, 91, 314, 315, 329, 330, 349, 359 

Eiley v. Byrne, 2 B. & Ad. 779 550 

V. Lewis, 1 Vin. ALr. 396 85 

Risk Allah Beyi'. Johnstone, 18 L. T. 620 . . . . 300, 547, 560 

■' V. Whitehurst and others, 18 L. T. 615 . . 45, 252, 297 

Eoach V. Garvan, Bead & Hiiggonsou, 2 Atk. 469 ; 2 Dick. 794 . . 123, 

130, 429, 4.54 
Eoherts v. Brown, 10 Bing. 5j9 ; 4 M. & Scott, 407 ; 6 C. & P. 757 . 177, 

255, 528 

V. Camden, 9 East, 93 56, 57, 97, 125 

r. Evans, 7 Ch. D. 830 ; 47 L. J. Ch. 469 ; 26 W. R. 280 ; 38 

L. T. 99 346 

V. Herliert, Sid. 97 ; S. C, suh nom. Cans v. Roberts, 1 Keb. 

418 59, 85 

and wife v. Roberts, 5 B. & S. 384 ; 33 L. J. Q. B. 249 ; 10 

Jnr. N. S. 1027 ; 12 W. E. 909 ; 10 L. T. 602 . 86, 312, 325 
Robertson v. M'Dongall, 4 Bing. 670 ; 1 M. & P. 692 ; 3 C. & P. 259 

237, 281 

V. Wylde, 2 M. & Rob. 101 270, 297 

Robinson v. Jermyn, 1 Price, 11 . 25 

■ ■ r. Jones, 4 L. E. Ir. 391 . . . . 151, 240, 283, 284, 532 

V. Marchant, 7 Q. B. 918 ; 15 L. J. Q. B. 134 ; 10 Jur. 156 

8, 78, 324. 365, 367 

Robinson's Case, 1 Bro-mi, 643 399 

Robshaw v. Smith, 38 L. T. 423 204, 205, 207, 615 

Rodriguez v. Tadmire, 2 Esp. 721 305 

Rogers v. Clifton (Sir Gervas), 3 B. & P. 587 . . . 203, 232, 268, 275 

V. Gravat, Cro. Eliz. 571 59 

Rolin and another v. Steward, 14 C. B. 595 ; 23 L. J. C. P. 148 ; 18 

Jur. 576 ; 2 C. L. R. 759 8 

Rollins r. Hinks, L. R. 13 Eq. 355 ; 41 L. J. Ch. 358 ; '10 W. R. 287 ; 

26 L. T. 56 144 

Ross V. Lawrence, (1651) Sty. 263 470 

Rotherham v. Priest, 49 L. J. C. P. 104 ; 28 W. R. 277 ; 41 L. T. 588 495 

Roupell V. Parsons, 24 W. R. 269 ; 34 L. T. 56 553 

Rourke v.JVhite MossCoUiery Co., (C. A.) 1 C. P. D. 556, 562 . . 564 

.15 

. 56 

. 472 

. 281 
113, 540 

. 164 
T. 



Routh V. Webster, 10 Beav. 561 

Rowcliffe V. Edmonds et nx., 7 M. & "W. 12 ; 4 Jnr. 684 . 

Rowe r. Roach, 1 M. & S. 304 

Ruckley v. Kiernan, 7 Ir. C. L. R. 75 

Rnel V. Tatnell, 29 W. R. 172 ; 43 L. T. 507 . . 81, 102, 

Runkle v. Meyers, 3 Yeates, (Penn.) 518 .... 

Runtz V. Sheffield, (C. A.) 4 Ex. D, 150 ; 48 L. J. Ex. 385 ; 40 L 

539 499 

Russell et ux. v. Come, 1 Salk. 119 ; 6 Mod. 127 ; 2 Ld. Raym. 1031 . 348 

(Sir William) i\ Ligon, 1 Roll. Abr. 46 ; 1 Yin, Abr. 423 . . 56 

• and another v. Webster, 23 W. R. 59 . . . 33, 105, 370 

Ivi 



TABLE OF CASES. Rus— Sha. 

PAGE 

Rustell V. Macquister, 1 Camp. 49 n 273 

Rutlierford v. Evans, 6 Bing. 451 ; 8 L. J. Old S. C. P. 86 ; 4 M. & 

P. 163 ; 4 C. & P. 74 . . .23, 69, 329, 330, 471, 531 

V. Wilkie, 41 L. T. 435 342 

Butter V. Chapman, 8 M. & W. 38 551 

Ryalls V. Leader and others, L. R. 1 Ex. 2!J6 ; 4 H. & C. 555 ; 35 L. 

J. Ex. 185 ; 12 Jur. N. S. 503 ; 14 W. R. 838 ; 14 L. T. 563 . . 248 

St. Nazaire Co., In re, 12 Ch. D. 88 ; 27 W. R. 854 ; 41 L. T. 110 . 337 

Salmon v. Isaac, 20 L. T. 885 194, 251, 269 

Saltash, Corjioration of, v. Goodman and another, 43 L. T. 464 ; W. N. 

1880, p. 167 563 

Salter v. Brown, Cro. Car. 436 ; 1 Roll. Abr. 37 ... . 58, 85 
Sampson v. Mackav, L. R. 4 Q. B. 643 ; 10 B. & S. 694 ; 38 L. J. Q. 

B. 245 ; 17 W. R. 883 ; 20 L. T. 807 334 

Sanderson v. Caldwell, 45 N. Y. 398 71 

Sandford v. Bennett, 24 New York, 20 355 

Sands V. Child and others, 3 Lev. 352 359 

Saner v. Bilton, II Ch. D. 416 ; 48 L. J. Ch. 545 ; 27 W. R. 472 ; 40 

L. T. 134 342 

Saull V. Browne, L. R. 9 Ch. 364 510 

Saunders v. Bate, 1 H. & N. 402 470, 537 

V. Edwards, 1 Sid. 95 106, 456 

■ r. Jones, (C. A.) 7 Ch. D. 435 ; 47 L. J. Ch. 440 ; 26 W. R. 

226 ; 37 L. T. 395, 769 506, 512 

V. Mills, 3 M. & P. 520 ; 6 Ring. 213 . . 159, 176, 253, 303 

Savage v. Robery, 5 Mod. 392 ; 2 Salk. 694 61, 80 

Savile v. Jardine, 2 H. BL 531 61, 80, 82, 295 

Saville d ux. v. Sweeny, 1 N. & M. 254 ; 4 B. & Ad. 514 . . . 349 
Saxby v. Easterbrook, 3 C. P. D. 339 ; 27 W. R. 188 . 13, 16, 454 

Save & Seal, (Viscount), v. Stephens, Ley, 82 ; Cro. Car. 135 . 135, 455 

Saver v. Begg, 15 Ir. C. L. R. 458 232 

Scarll r. Dixon, 4 F. & F. 250 . . . 211,223,224,239,271,287 

Scot et ux. V. Hilliar, Lane. 98 ; 1 Vin. Abr. 440 . . . . 55, 123 
Scott V. Royal Wax Caudle Co., 1 Q. B. D. 404 ; 45 L. J. Q. B. 586 ; 

24 W. R. 668 ; 34 L. T. 683 461 

v: Shepherd, 1 Sm. L. C. 8th edition, 466 ; 2 Wm. Bl. 892 ; 3 

Wils. 403 329 

V. Stansfield, L. R. 3 Ex. 220 ; 37 L. J. Ex. 155 ; 16 W. R. 911 ; 

18 L. T. 572 189, 497 

Seaman v. Bigg, Cro. Car. 480 77 

V. Netherclift, 1 C. P. D. 540 ; 45 L. J. C. P. 798 ; 24 W, R. 

884 ; 34 L. T. 878 . . 188, 191, 192, 484, 534 

(C. A.), 2 C. P. D. 53 ; 46 L. J. C. P. 128 ; 25 

W. R. 159 ; 35 L. T. 784 . . . . 189, 191, 192, 584, 534 

Senior v. Medland, 4 Jur. N. S. 1039 . . . 229, 236, 279, 282 
Seven Bishops' Case, 4 St. Tr, 300 . . . . . . 534, 581 

Sewers, Commissioners of, v. Glasse, L. R. 15 Eij. 302 ; 42 L. J. Ch. 

345 ; 21 W. R. 520 ; 28 L. T. 433 506 

Seymour v. Butterworth, 3 F. & F. 372 43, 44 

V. Coulson (C. A.), 28 W. R. 664 569 

Shackell v. Rosier, 3 Scott, 59 ; 2 Ring. N. C. 62 1 . . 359, 374 
Shaw V. Hope, 25 W. R. 729 562 

V. Shaw, 31 L. J. Pr. & Matr. 35 ; 2 Sw. & Tr. 515 ; 6 L. T. 477 430 

V. Thompson, Cro. Eliz. 609 56 

Ivii 



She— Smi. TABLE OF CASES. 

PACK 

Shealian V. Ahearne, 9 Ir. Rep. C. L. 412 . . . . . 90,474 
Shepheard v. Wliitaker, L. E. 10 C. P. 502 ; 32 L. T. 402 ; 23 W. 

R. Di^. 73 7, 31, 153, 362 

SheriiY of Surrey, In re, 2 F. & F. 234, 237 431, 433 

Sheward v. Earl of Lonsdale, 5 C. P. D. 47 ; 28 W. R. 324 ; 42 L. T. 

54 508, 533 

Shipley v. Todliunter, 7 C. & P. 680 154, 235, 281 

Sibley v. Tomlins, 4 Tyr. 90 67, 81, 108 

Sibtliorpe's Case, W. Jones, 366 ; RoU. Abr. 76 .... 72 

Siddons V. Lawrence, 3 Q. B. D. 100 ; 4 Ex. D. 177 ; 48 L. J. Q. B. 

161, 446 ; 27 W. R. 191, 247 ; 39 L. T. 608 ; 40 L. T. 795 . . 336 
Sidnam v. Mayo, 1 Roll Rep. 427 ; 1 Roll. Abr. 49 . . . .125 
Sidney's (Alt^ernon) Case, 9 How. St. Tr. 817 . . . 386,411 

Silver Lead Ore Co., In re, 10 Ch. D. 307, 312 565 

Simnionds v. Dunne, Ir. R. 5 C. L. 358 ... 200, 242, 279, 484 

Simmons v. Sweete, Cro. Eliz. 78 . . . . . .441 

Simpson v. Downs, 16 L. T. 391 241 

V. Fogo, 32 L. J. Ch. 249 ; 1 H. & M. 195 ; IJ. & H. 18 ; 11 

W. R. 418 ; 8 L. T. 61 ; 9 Jur. N. S. 403 ; 1 N. R. 422 439 

V. Robinson, 12 Q. B. 511 ; 18 L. J. Q. B. 73 ; 13 Jur. 187 

178, 275, 297, 542 

Sims x\ Prosser, 15 M. & W. 151 464 

Sivier v. Harris, W. N. 1876, p. 22 ; Bitt. 98 ; 20 Sol. J. 240 ; 60 

L. T. Notes, 213 507 

Skinner v. Kitch, L. R. 2 Q. B. 393 ; 36 L. J. M. C. 322 ; 15 W. R. 

830 ; 16 L. T. 413 149 

V. Shoppee d ux. 6 Bing. N. C. 131 ; 8 Scott, 275 . . . 339 

Skipworth's Case, L. R. 9 Q. B. 230 ; 12 Cox C. C. 371 . 428, 430, 433 

Slade V. Tucker, 14 Ch. D. 824 ; 49 L. J. Ch. 644 ; 28 W. R. 807 ; 43 

L. T. 49 518 

Slater u Franks, Hob. 126 Ill 

Slocomb's Case, Cro. Car. 442 119 

Sloman v. Governor of New Zealand, 1 C. P. D. 563 ; 46 L. J. C. 

P. 185 ; 25 W. R. 86 ; 35 L. T. 454 ; Bitt. 15 . . . .460 

Slowman v. Dutton, 10 Bing. 402 106 

Smith, Ex parte, In re Bishop, 13 Ch. D. 110 ; 49 L. J. Bkcy. 1 ; 28 

W. R. 174 ; 41 L. T. 388 432 

V. Andrews, 1 Roll. Abr. 54 ; Hob. 117 75 

V. Ashley, 52 Mass. (11 Met.) 367 . . . . 159, 387, 617 

V. Berg, 25 W. R. 606 ; 36 L. T. 471 515 

V. Dobbin, 3 Ex. D. 338 ; 47 L. J. Ex. 65 ; 26 W. R. 122 ; 37 

L. T. 777 462 

• V. Flynt, Cro. Jac. 300 58 

V. Harrison, 1 F. & F. 565 297, 497 

V. Hodgeskins, Cro. Car. 276 221, 267 

V. Knowelden, 2 M. & Gr. 561 471, 537 

V. Lakeman, 26 L. J. Ch. 305 ; 2 Jur. N. S. 1202 ; 28 L. T. 

Old S. 98 430 

V. Mathews, 1 M. & Rob. 151 .. . 80, 168, 231, 233, 276 

V. Parker, 13 M. & W. 459 ; 14 L. J. Ex. 52 ; 2D. & L. 394 . 171 

■ 1'. Scott, 2 C. & K. 580 248, 304 

V. Spooner, 3 Taunt. 246 141 

V. Taylor, 1 B. & P. N. R. 196 530 

V. Thomas, 2 Scott, 546 ; 4 Dowl. 333 ; 2 Bing. N. C. 372 ; 

1 Hodges, 353 291, 484 



TABLE OF CASES. Smi— Sta. 

PAOB 

Smith V. Ward, Cro. Jac. 674 109 

V. Woo<I, 3 Camp. 323 168, 232 

and others v. Richardson, 4 0. P. D. 112 ; 48 L. J. C. P. 140 ; 

27 W. R. 230 ; 40 L. T.,256 ; Willes, 20 . . . 499, 549 

Snag V. Gee, 4 Rep. 16 62 

V. Gray, 1 Roll. Abr. 57 ; Cro. Entr. 22 74 

Sneesby v. Lane. & York. Ry. Co., L. R. 9 Q. B. 263 ; 43 L. J. Q. B. 

69 ; 22 W. R. Dig. 206 ; 30 L. T. 492 . . . . 327 

(C. A.) 1 Q. B. D. 42 ; 45 L. J. Q B. 41 ; 24 W. R. 99 ; 33 

L. T. 372 327 

Snell V. WebHng, 2 Lev. 150 ; 1 Ventr. 276 124 

Snowdon v. Smith, 1 M. & S. 286 305 

Snyder v. Andrews, 6 Barbour (New York), 43 152 

Soane v. Knight, Moo. & Mai. 74, 187 49 

Solomon v. Lawson, 8 Q. B. 823 ; 15 L. J. Q. B. 253 ; 10 Jur. 796 . 31, 

119,127,132,470,471 
Solomons and others V. Medex, 1 Stark. 191 .... 324,367 
Somers v. Holt, 3 Dowl. 506 356 

V. House, Holt, 39 55, 96 

Somerville v. Hawkins, 10 C. B. 583 ; 20 L. J. C. P. 131 ; 15 Jur. 450 ; 

16 L. T. Old S. 283 202, 226, 270, 544 

Southam v. Allen, Sir T. Raym., 231 .... 79, 205, 206 

Southeet?. Denny, 1 Ex. 196; 17 L.J. Ex. 151 76 

Souther V. Sherwood, 2 Mer. 435 14, 674 

Southwark & Vauxhall Water Co. v. Quick, 3 Q. B. D. 315 ; 47 L. J. 

Q. B. 258 ; 26 W. R. 328, 341 ; 38 L. T. 81« 518 

Spackman v. Gibney, Bristol Spring Assizes, 1878 . . 484, 535, 607 

Spall V. Massey, 2 Stark. 559 8 

Sparling v. Haddon, 9 Bing. 11 ; 2 Moo. & Sc. 14 . . . . 531 
Speaker of the Leoislati\'e Assembly of Victoria v. Glass, L. R. 3 P. 

C. 560 ; 40 L. J. P. C. 17 ; 24 L. T. 317 425 

Speck V. Phillips, 7 Dowl. 470 304 

Spencer v. Amerton, 1 M. & Rob. 470 237 

Spill V. Maule, L. R. 4 Ex. 232 ; 38 L. J. Ex. 138 ; 17 W. R. 805 ; 

20 L. T. 675 235, 271, 280, 282 

Spiller V. Paris Skating Rink Co. W. N. 1880, p. 228 . . . . 527 

Sprightly V. Dunch, 3 Burr. 1116 464 

Springhead Spinning Co. v. Riley, L. R. 6 Eq. 551 ; 37 L. J. Ch. 889 ; 

16 W. R. 1138 ; 19 L. T. 64 .... 14, 15, 149, 358 

Spurr V. Hall, 2 Q. B. D. 615 ; 46 L. J. Q. B. 693 ; 26 W. R. 678 ; 

37 L. T. 313 492 

Sc^uire v. Johns, Cro. Jac. 585 . . . . . • • .126 
Stace V. Grithth, L. R. 2 P. C. 420 ; 6 Moore, P. C. C. X. S. 18 ; 20 

L. T. 197 212, 536 

Stainbank v. Beckett, Bart. Weekly Notes, 1879, p. 203 . . .481 
Stainton et ux. v. Jones, 2 Selw. N. P. 1205 ; 1 Dougl. 380 n. . 59, 85 

Stamp and wife v. White and wife, Cro. Jac. 600 . . . . 62, 96 
Standard Discount Co. v. La Grange (C. A.), 3 C. P. D. 71 ; 47 L. J. 

C. P. 3 ; 26 W. R. 25 ; 37 L. t. 372 562 

Stanhope v. Blith, 4 Rep. 15 60, 61, 82, 123 

Stanley v. Boswell, 1 Roll. Abr. 55 71 

V. Webb, 4 Sandf. (N. Y.) 21 99 

Stannus v. Finlay, Ir. R. 8 C. L. 264 483, 550 

Stanton v. Smith", 2 Ld. Raym. 1480 ; 2 Str. 762 . . . . 70, 78 
Staples V. Yuuug, 2 Ex. D. 324 ; 25 W. R. 304 342 

lix 



Sta— Sum. TABLE OF CASES. 

PAGE 

Stapleton v. Frier, Cro. Eliz. 251 56, 121 

Stebbiug v. Warner, 11 Mod. 255 61, 122 

Steele v. Brannan, L. R. 7 C. P. 261 ; 41 L. J. M. C. 85 ; 20 AV. R. 

607 ; 26 L. T. 509 6, 250, 399, 407, 408 

Stein V. Tabor, 31 L. T. 444 509 

Stennel v. Hogg, 1 Wms. Saunders, 228 586 

Stern v. Sevastoimlo, 14 C. B. N. S. 737 ; 32 L. J. C. P. 268 ; 11 W. R. 

862 ; 10 Jur. N. S. 317 ; 8 L. T. 538 503 

Sterry v. Foreman, 2 C. & P. 592 310, 322 

Steuart v. Gladstone, 7 Cli. D. 394 ; 47 L. J. Ch. 154 ; 26 W. R. 277 ; 

37 L. T. 575 527 

Stevens v. Sampson, 5 Ex. D. 53 ; 49 L. J. Q. B. 120 ; 28 W. R. 87 ; 41 

L T. 782 186, 194, 209, 257, 269, 276 

Steward v. Young, L. R. 5 C. P. 122 ; 39 L. J. C. P. 85 ; 18 W. R. 

492 ; 22 L. T. 168 142, 145, 226 

Stiles V. Nokes, 7 East, 493 ; S. C. sub nam. Carr v. Jones, 3 Smith, 

491 24, 46, 176, 255 

Stirling v. Du Barry, (C. A.) 5 Q. B. D. 65 ; 28 W. R. 404 . . . 499 

Stober v. Green, 1 Brownl. & Golds. 5 80 

Stockdale v. Hansard (1837), 7 C. & P. 731 ; 2 M. & Rob. 9 ; (1839) 

9 A. & E. 1 ; 2 P. & D. 1 ; 3 Jur. 905 . 187, 423, 424, 425, 435 
(1840) 11 A. & E. 253 ; 8 Dowl. 148, 522 . . . 187 

T. Onwbvn, 5 B. &C. 173; 7D. &R.625;2C. &P. 163 . 374 

• • V. Tart 6,^4 A. & E. 1016 170, 253 

Stocken V. Collin, 7 M. & W. 515 ; 10 L. J. Ex. 227 . . . . 581 
Stocldcyi'. Clement, 4 Bing. 162; 12 Moore, 376 . . . 127,226 

Stockton Iron Furnace Co., In re (C. A)., 10 Ch. D. 335, 348 ; 48 

L. J. Ch. 417 ; 27 AV. R. 433 ; 40 L. T. 19 563 

Stokes V. Grant and others, 4 C. P. D. 25 ; 27 AV. R. 397 ; 40 L. T. 

36 477,496 

Stone 17. Cooper, 2 Denio, (N. Y.) 293 71,112 

V. Smalcombe, Cro. Jac. 648 . . . . . . . . 122 

V. Yeovil (Mayor of), 1 C. P. D. 691 ; 45 L. J. C. P. 657 ; 24 

AV. R.1073 ; 34 L. T. 874 . . . 317 

(C. A.) 2 C. P. D. 99 ; 46 L. J. C. P. 137 ; 

25 AV. R. 240 ; 36 L. T. 279 . . 317 

Stoner v. Audeley, Cro. Eliz. 250 124 

Stooke V. Taylor, 5 Q. B. D. 569 ; 49 L. J. Q. B. 857 ; 29 AV. R. 49 ; 

43 L. T. 208 342 

Storey w. Challands, 8 C. & P. 2.34 206,208,209,311 

Strauss v. Francis (No. 1), 4 F. & F. 939 ; (No. 2), ih., 1107 ; 15 L. T. 

674 48, 545, 550 

L. R. 1 Q. B. 379 ; 35 L. J. Q. B. 133 ; 12 Jur. N. S. 

486 ; 14 AV. R. 634 ; 14 L. T. 326 .. . 550 
Street v. Licensed Victuallers' Society, 22 AV. R. 553 . . 99, 252 

Strode u Holmes, Stjde, 3.38 ; 1 Roll Abr. 58 71 

Stuart V. Lovell, 2 Stark. 93 49, 99, 273, 296 

Stubbst). Marsli, 15 L. T. 312 355 

Stuckley v. Bullhead, 4 Rep. 16 70 

Sturla V. Freccia, 11 Ch. D. 741 ; 28 AV. R. 81 ; 40 L. T. 861 . . 467 

Sturton (Lord) v. Chaffin, Moore, 142 125 

Suegos' Case, Hetl. 175 76 

Sugg V. Silber, 1 Q. B. D. 362 ; 45 L. J. Q. B. 4G0 ; 24 AV. R. 640 ; 

34 L. T. 682 523 

Summers v. City Bank, L. R. 9 C. P. 580 ; 43 L. J. C. P. 261 . 32, 81, 319 

Ix 



TABLE OF CASES. Sur— Tho. 

PAOB 

Surman v. Shelleto, 3 Burr. 1688 80 

Surrey, re the Sheriff of, 2 F. & F. 234 431, 433 

Sutton V. Johnstone, 1 T. R. 493 195 

V. Plumridge, 16 L. T. 741 212 

Swann v. Vines, Nov. 1877, cited, 37 L. T. 469 535 

Swansea (Mayor of) v. Quirke, 5 C. P. D. 106 ; 49 L. J. C. P. 57 ; 28 

W. R. 371 ; 41 L. T. 758 502 

Sweetapple v. Jesse, 2 N. & M. 36 ; 5 B. & Ad. 27 . . . . 114 

Swithin ei !(x\ i". Vincent e^ MX., 2 Wils. 227 .... 351,371 

Sydenham v. Man, Cro. Jac. 407 537 

Sykes v. Sykes, L. R. 4 C. P. 645 ; 38 L. J. C. P. 281 ; 17 W. R. 799 ; 

20 L. T. 663 566 

Symmons v. Blake, 2 C. M. & R. 416 ; 1 M. & Rob. 477 ; 4 Dowl. 

263 ; 1 Gale, 182 99, 273, 296 

Taaffe v. Downes, 3 Moo. P. C. C. 36 n 189 

Tabart v. Tipper, 1 Camp. 350 37, 536 

Tait V. Culbertson, 57 Barl). 9 372 

Talbot V. Case, Cro. Eliz. 823 62 

Talbutt V. Clark, 2 M. & Rob. 312 159, 303 

Tardrew v. Brook, 5 B. & Ad. 880 550 

Tarleton v. McGawlev, Peake, 270 31, 149, 322 

Tarpley v. Blabey, 2 Bing. N. C. 437 ; 2 Scott, 642 ; 1 Ho<I-es, 414 

155, 276, 307, 361, 533 

Tasburgh v. Day, Cro. Jac. 484 138 

Tate V. Humphrey, 2 Camp. 73 n. 277 

Taylor v. Batten (C. A.) 4 Q. B. D. 85 ; 48 L. J. Q. B. 72 ; 27 

W. R. 106 ; 39 L. T. 408 521 

V. Carr, 3 Up. Can. Q. B. Rep. 306 71 

V. Cass, L. R. 4 C. P. 614 ; 17 W. R. 860 ; 20 L. T. 667 . . 337 

V. Hall, 2 Str. 1189 63 

V. Hawldns, 16 Q. B. 308 ; 20 L. J. Q. B. 313 ; 15 Jur. 746 

203, 232, 269, 281, 285 
■ V. How, Cro. Eliz. 861 ; 1 Vin. Abr. 464 71 

V. Jones, 1 C. P. D. 87 ; 45 L. J. C. P. 110 ; 34 L. T. 131 . 499 

V. Neri, 1 Esp. 386 322 

V. Perkins, Cro. Jac. 144 ; 1 Roll. Abr. 44 . . . 63, 126 

. V. Perr, 1 Roll. Abr. 44 . . . ... 63, 66 

V. Starkey, Cro. Car. 192 75 

Taylor's Case, 8 Ch. D. 643 ; 47 L. J. Ch. 701 ; 26 W. R. 601 ; 38 

L. T. 587 563 

Teacy v. McKenna, Ir. Rep. 4 C. L. 374 23, 94 

Tempest v. Chambers, 1 Stark. 67 57, 125 

Terry v. Hooper, 1 Lev. 115 . . 80 

TerwiUiger v. Wands, 3 Smitli (17 N. Y. R.), 54 . . 20, 313, 332 

Tetley v. Easton, 25 L. J. C. P. 293 509 

Theodor Korner, The, 3 P. D. 162 ; 47 L. J. P. M. 85 ; 38 L. T. 818 519 

Theyer v. Eastwick, 4 Burr. 2032 59, 85 

Thomas v. Churton, 2 B. & S. 475 ; 31 L. J. Q. B. 139 ; 8 Jur. N. S. 

189 
80 

458 



795 

V Jackson, 3 Bing. 104 ; 10 Moore, 425 

V. Rumsey, 6 Johns. (N. Y.) 26 

V. Williams ; 14 Ch. D. 864 ; 49 L. J. Ch. 605 ; 28 W. R 

983 ; 43 L. T. 91 16, 334, 454 

Thompson v. Bernard, 1 Camp. 48 109 

Ixi 



Tho-Tur. TABLE OF CASES. 

PAGE 

Tlioinpson r. Nye, 16 Q. B. 175 ; 20 L. J. Q. B. 85 ; 15 Jur. 285 . 305 

V. Shackell, Moo. & Mai. 187 49 

■ r. Tweui^e, 2 It oil. Eei). 433 78 

Thorley v. Lord Kerry, 4 Taunt. 355 ; 3 Camp. 214, n. . . 5, 22 

Thorley's Cattle Food Co. v. Massam, (interloc.) 6 Ch. D. 582 ; 46 

L. J. Ch. 713 15, 16, 148 

(before Malius, V. C.) 14 Cli. D. 763; 28 

W. R. 295 ; 41 L. T. 542 . . 15, 16, 148 

(C. A.) 14 Ch. D. 781 ; 28 W. U. 966 ; 42 L. T. 

851 15, 16, 148 

Thorn v. Blanchard, 5 Johns. (Amer.) 508 193 

Thornton v. Stephen, 2 M. & Rob. 45 545 

Thorpe v. Macaulay, 5 Madd. 230 516, 527 

Thurmant). Wild, 11 A. &E. 453 489 

Tibbott V. Haynes, Cro. Eliz. 191 56 

Tibbs V. Browne, 2 Grant (Penns.), 39 347 

V. Smith, 3 Salk. 325 ; Sir T. Raym. 33 122 

Tichbome v. Mostyn, L. R. 7 Eq. 55 n. ; 15 W. R. 1072 ; 17 L. T. 5 429 

V. Tichborne, 39 L. J. Ch. 398 ; 18 W. R. 621 ; 22 L. T. 55 429 

Tidman v. Ainslie, 10 Ex. 63 165, 174 

Ti-he V. Cooper, 7 El. & Bl. 639 ; 26 L. J. Q. B. 215 ; 3 Jur. N. S. 

716 ; 5 W. R. Dis;. 195 173, 487 

V. Wicks, 33 Up. Can. Q. B. Rep. 470 . . . . 66, 73 

Tildesley v. Harper, (C. A.) 10 Ch. D. 393 ; 48 L. J. Ch. 495 ; 27 

W. R. 249 ; 39 L. T. 552 499 

Tilk V. Parsons, 2 C. & P. 201 314 

Todd V. Hastings, 2 Sand. 307 80 

V. Hawkins, 2 M. & Rob. 20 ; 8 C. & P. 88 . 212, 235, 268, 484 

Tomlinson v. Brittlebank, 4 B. & Ad. 630 ; 1 N. & M. 455 . . 106 
Toogood V. Spyriug, 1 C. M. & R. 181 ; 4 Tyr. 582 . 217, 226, 242, 288 
Tottentham v. Barry, 12 Ch. D. 797 ; 48 L. J. Ch. 641 ; 28 W. R. 389 462 
Townshend (Lord) v. Hughes (Dr.), 2 Mod. Rep. 150 

73, 96, 126, 136, 317, 320, 558 
Tozer v. Mashlbrd, 6 Ex. 539 ; 20 L. J. Ex. 225 ... 57, 125 

Traill v. Denham, Times, May 4th, 1880 99 

Treat v. Browning, 4 Connecticut, 408 164 

Trenton Insurance Co. v. Perrine, 3 Zab. 402 (Zabriskie, New 

Jersey) ............ 368 

Tripp V. Thomas, 3 B. & C. 427 293, 464, 543 

Trotmanv. Dunn, 4 Camj). 211 191 

Trowell v. Shenton, (C. A.) 8 Ch. D. 318, 321 ; 47 L. J. Ch. 738 ; 26 

W. R. 837 ; 38 L. T. 369 562 

Tnmibull v. Gibbous, 3 City Hall Recorder, 197 . . . 152, 153 

Tuam (Archbishop of) v. Robeson, 5 Bing. 17 ; 2 M. & P. 32 . . 28 

Tucker's Case, Ry. & M. 134 582 

Tunicliffe v. Moss, 3 C. & K. 83 329, 330 

Tupling u Ward and others, 6 H. & N. 749 ; 30 L. J. Ex. 222 ; 9 W. R. 

482 ; 7 Jur. N. S. 314 ; 4 L. T. 20 . 504 

TurnbuU v. Bird, 2 F. & F. 508 44 

Turner, Ex parte, 3 Mont. D. & De G. 523, 551, 558 . . . . 430 

V. Heyland, 4 C. P. D. 432 ; 48 L. J. C. P. 535 ; 27 W. R. Dig. 

63 ; 41 L. T. 556 337, 338, 570 

V. Meryweather, 7 C. B. 251 ; 18 L. J. C. P. 155 ; 13 Jur. 683 

103, 128, 529 

(Exch. Ch.) 19 L. J. C. P. 10 . . 103, 128, 529 

Ixii 



TABLE OF CASES. 



Tur-Wal. 



PAGE 

Turner r. Ogden, 2 Salk. 696 ; G ]\Iod. 104 ; Holt, 40 . 54, 57, 59. 85 

r. Stirlini,^ 2 Ventr. 26 139 

■ V. Sullivan and others, 6 L. T. 130 251 

Tuson V. Evans, 12 A. & E. 733 227, 281 

Tutchin's Case, 5 St. Tr. 527 ; 14 How. St. Tr. 1095 ; 2 Lord Raym. 

1061 ; 1 Salk. 50 ; 6 Mod. 268 . . 104, 377, 416, 417, 575 

Tutty V. Alewin, 11 Mod. 221 68,76 

Twycross v. Grant, (C. A.) 4 C. P. D. 40 ; 47 L. J. Q. B. 676 ; 27 

W. R. 87 ; 39 L. T. 618 . . 355, 522 

VV. N. 1875, pp. 201,229 ; 1 Charley, 114, 115 ; Bitt. 10, 
38 ; 20 Sol. J. 54, 97 ; 60 L. T. Notes, 49, 84 . 355, 522 
Tyne Alkali Co. v. Lawson, 36 L. T. 100 ; W. N. 1877, p. 18 . . 336 



Underwood v. Parks, 2 Str. 1200 .305 

Union Bank of London v. Manby, 13 Ch. D. 239 ; 49 L. J. Ch. 106 ; 

28 W. R. 23 ; 41 L. T. 393 516 

Upton v. Pinfold, Comyn, 267 . . . • • • . . 118 
UsiU i;. Hales, j 3 c. p. D. 319 ; 47 L. J. C. P. 323 ; 26 W. E. 371 ; 

^.Brearley, ^ 33 l. T. 63 244,248 

V. Clarke, ) 



Vandenburg v. Truax, 4 Denio, N. Y. 464 .... 

Vandersee v. McGregor, 12 Wend. 546 

"Van Sandau, Ex 'parte, 1 Phillips, 445 

V. Turner, 6 Q. B. 773 

Vaughan v. Ellis, Cro. Jac. 213 

Vaux's Case, 4 Rep. 45« 

Vernon v. Vernon, 40 L. J. Ch. 118 ; 19 W. R. 404 ; 23 L. T. 697 

Vessey v. Pike, 3 C. & P. 512 

Vicars v. Wilcox, 8 East, 1 ; 2 Sm. L. C. 553 (8th edit.) 
V. Worth, 1 Str. 471 



322 

270 

438 

438 

140 

587 

429,434 

. 304 

322, 326 

59, 84, 85, 131 



Victoria Assembly (Speaker of) v. Glass, L. R. 3 P. C. 560 ; 40 L. J 

P. C. 17 ; 24" L'. T. 317 • . . 425 

Villeboisnet v. Tobin and others, L. R. 4 C. P. 184 ; 38 L. J. C. P. 

146 ; 17 W. R. 322 ; 19 L. T. 603 504 

Villers v. Mon.sley, 2 Wils. 403 22, 63 

Vine, Ex parte, in re Wilson, 8 Ch. D. 364 ; 26 W. R. 582 ; 38 L. T. 

730 354 

Vines v. Serell, 7 C. & P. 163 298 

Viney, Ex parte, (C. A.) 4 Ch. D. 794; 46 L. J. Bank. 80 ; 25 W. R. 

364 ; 36 L. T. 43 563 

Vivian v. WiUet, Sir T. Raym. 207 ; 3 Salk. 326 . • . . 78, 125 



Wadsworth v. Bentley, 23 L. J. Q. B. 3 

2 C. L. R. 127 ; 17 Jur. 1077 
Wagstaffe v. Anderson and others, 39 L. T. 332 
Waithman v. Weaver, 11 Price, 257 n. ; D. & R 
Wakelin v. Morris, 2 F. & F. 26 
Wakley v. Cooke & Healey, 4 Ex. 511 ; 19 L. J. 

V. Healey, 7 C. B. 591 ; 18 L. 

V. Healey & Cooke, 4 Ex. 53 ; 

V. Johnson, Ry. & M. 422 . 

Walcot V. Walker, 7 Yes. 1 

Waldegrave (Sir William) v. Agas, Cro. Eliz. 191 



1 B. C. Cases (L. & M.) 203 ; 

456 

. . 519 

. 305 

. . 295 

Ex.91 . 30,171,485 

J. C. P. 241 

18 L. J. Ex. 426 



N. P. C. 10 



22, 29, 130 
69, 126 
. 307 
. 374 
56, 131 

Ixiii 



Wal— Web. TABLE OF CASES. 

PAGE 

Walden v Mitchell, 2 Ventr. 265 58, 70 

Walker v. Brogden, 17 C. B. N. S. 65 ; 11 Jur. N. S. 671 ; 13 W. R. 

809 ; 12 L. T. 495 47, 529 

Wallace, Re, L. R. 1 P. C. 2S3 ; 36 L. J. R C. 9 ; 15 W. R. 533 ; 14 

L. T. 286 436 

V. Carroll, 11 Ir. C. L. R. 485 204 

Wallingford v. Mutual Society, (H. L.) 5 App. Cas. 685 ; 50 L. J. C. P. 

49 ; 43 L. T. 258 522 

Wallis V. Hepburn, 3 Q. B. D. 84 n 522 

Walls or Watts v. Rymes, 2 Lev. 51 ; 1 Veut. 213 ; 3 Salk. 325 . . 60 

Walsliaui V. Staiuton, 2 H. & M. 1 ; 12 W. R. 199 ... . 518 

Walter v. Beaver, 3 Lev. 166 558 

V. Brogden, 19 C. B. N. S. 65 28 

Ward V. Reynolds, Pascli. 12 Anne B. R. ; cited Cowp. 278 . . 97, 126 
. V. Sinlield, 43 L. T. 253 - 546 

V. Smith, 6 Bing. 749 ; 4 M. & P. 595 ; 4 0. & P. 302 . 154,365,533 

V. Weeks, 7 Bing. 211 ; 4 M. & P. 796 . 61, 82, 164, 167, 329, 330 

Warden v. Bailey, 4 Taunt. 67 195 

Ware, In re, Ex parte Drake, 5 Ch. D. 866 ; 46 L. J. Ch. 105 ; 25 W. 

R. 641 ; 36 L. T. 677 456 

Warman v. Hine, I Jur. 820 .... . 27, 29, 170, 276 

Warne v. Chadwell, 2 Stark. 457 273 

Warr v. Jolly, 6 C. & P. 497 168, 232, 233 

Warren v. Warren, 1 C. M. & R. 250 ; 4 Tyr. 850 . 154,199, 242, 279, 533 
Warton v. Gearing, 1 Victoria L. R. Cases at Law, 122 . . . 65, 75 

Warwick v. Foulkes, 12 M. & W. 508 178, 274 

Wason, Ex parte, L. R. 4 Q. B. 573 ; 38 L. J. Q. B. 302; 40 L. J. M. 

C. 168 ; 17 W. R. 881 186 

V. Walter, L. R. 4 Q. B. 73 ; 8 B. & S. 671 ; 38 L. J. Q. B. 

34 ; 17 W. R. 169 ; 19 L. T. 409 

34, 40, 43, 186, 23G, 243, 246, 258, 259, 618 

Waterer v. Freeman, Iloh. 267 142 

Waterfield v. Chichester (Bishop of), 2 Mod. 118 257 

Waters v. Waters, 24 W. R. 190 460 

Watkin v. Hall, L. R. 3 Q. B. 396 ; 37 L. J. Q. B. 125 ; 16 W. R. 

857 ; 18 L. T. 561 .. . 101, 162, 164, 165, 174, 175, 177 
Watson, In re, Shaw's Cases (Scotch), No. 6 430 

V. Clerke, Comb. 138 85 

V. McCaim, 6 L. R. Ir. 21 566 

V. Vanderhish, Hetl. 71 76, 77 

Watt V. Ligertwood and another, L. R. 2 Sc. App. 261 . . . 433 
Watts V. Fraser and another, 7 C. & P. 369 ; 7 Ad. & E. 223 ; 1 M. & 

Rob. 449 ; 2 N. & P. 157 ; 1 Jur. 671 ; W. W. & D. 451 

152, 159, 307, 362, 532 

V. Rymes, 2 Lev. 51 ; 1 Ventr. 213 ; 3 Salk. 325 . . . 122 

Weatherston v. Hawkins, 1 T. R. 110 232 

Weaver v. Lloyd, 2 B. & C. 678 ; 1 C. & P. 295 ; 4 D. & R. 230 

169, 170,545 

Web V. Poor, Cro. Eliz. 569 • ... 62 

Webb V. East, (C. A.) 5 Ex. D. 23, 108 ; 49 L. J. Ex. 250 ; 28 W. R. 

229,336; 41 L.T. 715 518,519 

V. England, 29 Beav. 44 477 

1). Mansel, (C. A.) 2Q. B. D. 117 ; 25 W. R. 389 . . .563 

Webster v. WhewaU, 15 Ch. D. 120 ; 49 L. J. Ch. 704 ; 28 W. R. 951 ; 

42 L. T. 868 516, 520 

Ixiv 



TABLE OF CASES. Wei— Wil. 

PAGE 

Weir V. Hoss, 6 ALilmma, 881 154 

Weiss I'. Whitteiuore, 38 Mich. 366 320 

Wellesley's (Mr. Long) Case, 2 Russ. & My. 639 . . . .431, 448 
Welply V. Buhl, (C. A.) 3 Q. B. D. 80, 253 ; 47 L. J. Q. B. 151 ; 26 W. 

R. 300; 38 L. T. 115 566 

Welsh Steam Colliery Co. v. Gaskell, 36 L. T. 352 . . . . 520 

Wenman v. Ash, 13 C. B. 836 ; 22 L. J. C. P. 190 ; 17 Jur. 579 ; 1 C. 

L. R. 592 152, 264 

Western Counties Manure Co. v. Lawes Chemical ^lanure Co., L. E. 9 

Ex. 218 ; 43 L. J. Ex. 171 ; 23 W. R. 5 . 33, 91, 145, 148, 476, 634 
Westman v. Aktiebolaoet, &c., Co., 1 Ex. D. 237 ; 45 L. J. Ex. 327 ; 24 

W. R. 405 . ^ 357 

We.st of England and South Wales Bank v. Nicholls, 6 Ch. D. 613 . 510 
Weston V. Beeman and anotlier, 27 L. J. Ex. 57 361 

V. Dobniet, Cro. Jac. 432 193 

Wetherhead v. Armitage, 2 Lev. 233 ; 3 Salk. 328 ; Freem. 277 ; 2 

Show. 18 67, 77, 84 

Whalley's Case, L. R. 9 Q. B. 219 ; 12 Cox, C. C. 358 . . 430, 448 

Wharton v. Brook, Ventr. 21 77, 84 

Wheatcroft v. Mousley, 11 C. B. 677 529 

Wheeler v. Haynes, 9 A. & E. 286 ; 1 P. & D. 55 ; 1 W. W. & H. 

645 104 

Whistler v. Hancock, 3 Q. B. D. 83 ; 45 L. J. Q. B. 460 ; 24 W. R. 

640 ; 34 L. T. 682 522 

V. Ruskin, Times, Nov. 26 & 27, 1878 . . . . 38, 49 

White V. Tyrrell (2), 5 Ir. C. L. R. 498 487 

White et nx. v. Harwood ct ux., Style, 138 ; Vin. Aljr. Baron & 

Feme, Aa. 352 

Whiteley v. Adams, 15 C. B. N. S. 392 ; 33 L. J. C. P. 89 ; 10 Jur. 

N. S. 470 ; 12 W. R. 153 ; 9 L. T. 483 . . . . 198, 466 
Whitfield V. Powel, 12 Mod. 248 63 

and others v. S. E. Ry. Co., El. Bl. & El. 115 ; 27 L. J. Q. B. 

229 ; 4 Jur. N. S. 688 151, 240, 283, 369 

Whittington v. Gladwin, 5 B. & C. 180 ; 2 C. & P. 146 . . . 78, 79 
Wilby V. Elston, 8 C. B. 142 ; 18 L. J. C. P. 320 ; 7 D. & L. 143 ; 13 

Jur. 706 85 

V. Hennian, 2 Cr. & M. 658 523 

Wilk's Case. 1 Roll. Ahr. 51 108 

'W'imams v. Beaumont, lo Biug. 260; 3 M. & Scott, 705 . 32, 368, 369 

V. Cidlender, Holt, N. P. 307 305 

c. Gardiner, 1 M. & W. 245 ; 1 Tvrw. & Gr. 578 . 103, 125 

c. Hill, 19 Wend. 305 312 

i: Johns, 1 Mer. 303, n 431 

v. Stott, 1 C. & M. 675 ; 3 Tvr. 688 . . . . 55, 62 

Williams's Case, 2 Rolle R. 88 411 

Williamson v. Freer, L. R. 9 C. P. 393 ; 43 L. J. C. P. 161 ; 22 W. R. 

878 ; 30 L. T. 332 151, 240, 283, 285, 532 

A\'illis V. Maelachlan, 1 Ex. D. 376 ; 45 L. J. Ex. 689 ; 24 W. R. Dig. 

104 ; 35 L. T. 218 447 

^\'ilson. In re, Exnarte Vine, 8 Ch. D. 364 ; 26 W. R. 582 ; 38 L. T. 

730 . 354 

Wilson i: Church, 9 Ch. D. 552 ; 26 W. R. 735 ; 39 L. T. 413 . 501, 564 
(C. A.) 11 Ch. D. 576 ; 48 L. J. Ch. 690 ; 27 W. R. 
843 ; 12 Ch. D. 454 ; 28 W. R. 284 ; 41 L. T. 
.501 501, 564 

l.w e 



Wil— Zen. TABLE OF CASES. 

PAGE 

Wilson r. Collins, 5 C. & P. 373 240, 283, 286 

V. Goit, 3 Smith (17 N. Y. R), 445 . . 21, 313, 325, 328, 350 

V. Eeed and others, 2 F. & F. 149 . . . . 43, 295, 372 

%\ Robinson, 7 Q. B. 68 ; 14 L. J. Q. B. 196 ; 9 Jur. 726 . 178, 

212, 274 
Wilson's fCarus) Case, 7 Q. B. 984 . . . 429, 433, 435, 439, 443, 444 
Wilton r.'Bri<,mell, W. N. 1875,1x239 ; 1 Charlev, 105 ; Bitt. 56 ; 20 

Sol. J. 121 ; 60 L. T. Xotes, 104 .."... 507, 515 

Win£?ard v. Cox, W. N. 1876, p. 106 ; Bitt. 144 ; 20 Sol. J. 341 ; 60 

L. T. Notes, 304 479 

Wiseman v. Wiseman, Cro. Jac. 107 . 130 

Wolverhampton New Waterworks Co. v. Hawksford, 5 C. B. N. S. 

703 ; 28 L. J. C. P. 198 515 

Wood V. Adam, 6 Bing. 481 470 

V. Brown, 6 Taunt. 169 ; 1 Marsh. 522 470 

V. Jones, 1 F. & F. 301 505 

AVoodard v. Dowsing, 2 j\Ian. & Ry, 74 28, 283 

Woodfall's Case, 5 Burr. 2661 . " 588 

Woodgate v. Ridout, 4 F. & F. 202 ... 29, 45, 46, 253, 539 

Woodruff 1'. Westley, 1 Yin. Abr. 463 71 

Woods V. Woods, 2 Curt. 516 403 

Woodward v. Lander, 6 C. & P. 548 217, 223, 281 

Woolmer v. Latuner, 1 Jur. 119 305 

Woolnoth V. Meadows, 5 East, 463 ; 2 Smith, 28 . , 56, 97, 124, 163 

Wootton V. Wootton, W. N. 1869, p. 175 338 

Wren and another x\ Weild, L. R. 4 Q. B. 730 ; 10 B. & S. 51 ; 38 

L. J. Q. B. 88, 327 ; 20 L. T. 277 144, 496 

Wrennnm's Case, Pop. 135 . . . 428 

Wright V. Clements, 3 B. & Aid. 503 470 

V. Goodlake, 34 L. J. Ex. 82 507 

V. MoorhoiTse, Cro. Eliz. 358 71 

V. Woodgate, 2 C. M. & R. 573 ; 1 Tvr. & G. 12 ; 1 Gale, 329 

211,270,535 
Wyatt x\ Gore, 1 Holt, N. P. 299 538, 549 



Yarborough v. Bank of England, 16 East, 6 



368 
440 
189 
354 
555 
31 



Yarmouth (Mayor of), ^.cjXM-^ 1 Cox, C. C. 122 .... 

Yates V. Lansing, 5 Johns. 283 ; 9 Johns. 395 (Amer.) 

Yeates et ux. v. Reed et ux., 4 Blackf. (Indiana), 463 

Yetts V. Foster, (C. A.) 3 C. P. D. 437 ; 26 W. R. 745 ; 38 L. T. 742 

Yoiuig V. Hickens, 6 Q. B. 606 

and others v. Macrae, 3 B. & S. 264 ; 32 L. J. Q. B. 6 ; 11 

W. R. 63 ; 9 Jur. N. S. 539 ; 7 L. T. 354 . 33, 145, 146, 147, 148 
Yrisarri v. Clement, 4 L. J. Old S. C. P. 128; 3 Bing. 432 ; 11 

Moore, 308 ; 2 C. & P. 223 24, 69, 530 

Zenobio v. AxteH, 6 T. R. 162 ; 3 M. & S. 116 . . . 110, 470, 574 



Ixvi 



TABLE OF STATUTES CITED. 



The Statutes marked with an asterisk will be found printcdj in full in 
A2)2Kndix C, 2'ost, pp- 664 — 683. 



*3 Ed. I. Stat. AVestininster I. 
c. 34 133, 135, 417, 422, 427 



25 Ed. III. c. 2 . 




411 


*2 Rich. II. St. 1, c. 5 73, 


134, 


135, 


417, 


422 


427 


*12 Ricli. II. c. 11 135,417, 


422, 






427 


1 Ed. VI. c. 1, s. 1 . 




400 


2 & 3 Ed. VI. c. 1, s. 2 . 




400 


3 . 




400 


1 & 2 Ph. & M. c. 13 . 




447 


1 Eliz. c. 1, s. 6 




402 


2, s. 2 




400 


3 . 




400 


5 Eliz. c. 4 . . . 




201 


13 Eliz. c. 12, s. 2 . 




401 


18 Eliz. c. 3 . 




58 


1 Jac. I. c. 11 




59 


3 Jac. I. c. 21 . 




401 


21 Jac. I. c. 16 


335 


456 


s. 3 




455 


19, s. 7 




456 


*13 Our. II. Stat. I. c. 1, s. 


3 . 


422 


13 & 14 Car. II. c. 33 . 




11 


14 Car. II. c. 4, s. 1 




401 


17 Car. II. c. « 




355 


2'J Car. II. c. 7, «. G 




400 


9, .s. 1 




402 


2 




402 


1 Jac. II. c. 17 




11 


1 W. & M. Sess. 2, c. 2 . 




186 


3 W. & M. c. 10 . 




57 


*9, s. 4. . 




59 


*4 W. & M. c. 18, s. 1 591 


,595 


,6G6 


5 &6 W. &M. c. 11, s. 3 




578 


8&9 Win. III. c. ri,s. G 




355 



9 Wm. III. c. 35 [c. 32 in the 
Statutes at Large] 

4 & 5 Anne, c. 3 (al. c. 16), 
s. 19 

5 Anne, c. 8, s. 23 . 

6 Anne, c. 7, (al. 41), s. 1 

2 

10 Anne, c. 19, s. 113 . 
4 Geo. I. c. 11 

6 Geo. I. c. 19, s. 2 . 

7 Geo. II. c. 8, s. 1 . 
9 Geo. II. c. 5, s. 3 . 
*32 Geo. III. c. 60 (Fox's Libel 



Act) 



s. 1 
3 
4 



12 94 



36 Geo. in. c. 7 . 

38 Geo. III. c. 71, s. 17 . 

*39 Geo. III. c. 79, s. 29 12, 

48 Geo. III. c. 58. s. 1 
53 Geo. III. c. 127, s. 3 

160 
57 Geo. III. c. 6 . 
60 Geo. III. and 1 Geo. IV 
c. 4, s. 1 

2 . 



*8, s. 1 . 

2 . 

3 . 

4 . 

3 Geo. IV. c. 40, s. 3 
*5 Geo. IV. c. 83, s. 4 
6 Geo. IV. c. 50, ?. 30 
c. 119 



PAGK 
401 

456 

135 

411 

422 

12 

59 

444 

81 

59 

667 
585 
585 
586 
411 
159 
531, 
668 
595 
402 
401 
411 



579, 
579, 



669 
670 
394, 409, 412 
412 
412 
412 
407 
670 
579 
12 



407, 



Ixviii 



TABLE OF STATUTES CITED. 



7 Geo. IV. c. G4, s. 20 . 
7 & 8 Geo. IV. c. 28, s. 2 
9 Geo. IV, c. 22, s. 7 
32, s. 3 
11 Geo. IV. and 1 Wm. 
c. 73, s. 1 . 

2 & 3 Wm. IV. c. 93 . 

3 & 4 Wm. IV. c. 42, s. 7 

40 
6 & 7 Wm. IV. c. 76 . 
s. 6 . 



PACE 

. 582 
. 576 

248, 255 
. 171 

IV. 



. 412 
. 447 
. 456 
. 438 
. 12 
. 531 
s. 8 . . . . 531, 532 

13 531 

*19 . 513, 514, 515, 532, 671 
c. 96, s. 6 . . . . 178 
. 161 
. 412 
407, 671 
. 396 
12, 672 
. 406 
187, 672 



7 Wm. IV. & 1 Vict. c. 23 
*1 & 2 Vict. c. 38, s. 2 . 

105, s. 1 . 
*2 & 3 Vict. c. 12, s. 2 . 

71, s. 49 . 
*3 & 4 Vict. c. 9 



Appendix B. . 466 
334, 335 

. 223 

. 404 

. 574 

. 453 

. 248 



401 
13 



c. 24, s. 2 
86, s. 3 

5 & 6 Vict. c. 38 . 

s. 1 . 

c. 97, s. 4 . 

122, s. 42 . 

6 & 7 Vict. c. 68, s. 1 . 

14 . 

*Lord Campbell's Act, c. 96, 

s. 1 . . 299, 465, 568, 674 

2 299, 301, 465, 487, 491, 497, 

568 

3 378 

4 . . 379, 572, 573, 580 

5 . . . . 379, 390 

6 . 178, 388, 576, 577, 589 

7 . 363, 364, 365, 385, 583 

8 . . . 590, 595, 596 

7 & 8 Vict. c. 84 . . . 143 

8 Vict. c. 16, s. 135 . .461 

18, s. 134 . . 461 

20, s. 138 . . 461 

*8 & 9 Vict. c. 75, s. 2 300, 487, 677 

*9 & 10 Vict. c. 33, s. 1 . 531, 678 

c. 95, s. 58 

73 . 

88 

113 

cxxvi. . ^ 

11 & 12 Vict. c. 12, .' 

*s. 3 

c. 42, f- 



335, 453, 565 

. 568 
. 343, 569 

. 445 

. 569 

1 . .411 

410, 412, 678 
1 . . 573 



11 & 12 Vict. c. 



12 & 13 Vict. 
14 & 15 Vict. 



42, s. 9 . 
78, s. 2 . 
5 . 
101, s. 2 
93, s. 9 . 
100, s. 1 

2 
3 

24 
25 

29 



PAGE 

. 573 

. 586 

. 587 

. 445 

. 446 

. 574, 

577, 582 

. 577 

. 577 

. 582 

. 577, 

582, 586 

. 404 



15 & 16 Vict. c. 76 (Common 
Law Procedure Act, 1852) 
s. 11 



16 

29 

40 

*61 



70 
109 
112 
142 

(Schedule B., form 33) 
16 & 17 Vict. c. 30, s. 4 
5 



325 

459 

. 461 

. 463 

. 325, 347 

101, 115,120, 128,471, 

473, 575, 679 

491, 492 

. 528 



17 & 18 Vict. 
Act, 1854) 



6 . 

9 . 
c. 34, s. 1 . 
c. 125 (C. L. P. 



528 
354 
103 

578 
578 
579 
525 
526 



18 Vict. c. 27 . 



s. 24 

25 

27 

51 

103 



513 

. 546 
. 546 
533, 580 
. 501 
. 580 
12 



*18 & 19 Vict. c. 41. 17, 59, 87, 679 
s. 1 
55, s. 35 
19 & 20 Vict. c. 16, s. 1 . 



47 
97, s. 12 
108, s. 23 
20 & 21 Vict. c. 43 

s. 4 . 
*c. 83 . 

s. 1 . 

85, s. 21 

25 

26 

90, s. 27 



21 & 22 Vict, 

22 & 23 Vict, 



c. 17 



403 
. 425 
. 579 
. 369 
. 456 

453, 565 
. 407 
. 407 

405, 680 
12 
. 346 
. 351 
. 351 
. 531 
. 571 



TABLE OF STATUTES CITED. 



PAGE 

23 & 24 Vict. c. 28 . . . 81 

90, s. 27 . 531 

126, s. 19 . 370 

24 & 25 Vict. c. 94, s. 8 . . 570 

9ti, s. 4() . 379 

47 . 379 

c. 131 (Bankruptcy 

Act, 18(il) ss. 101, 102 

25 & 26 Vict. c. 89, s. 62 

27 & 28 Vict. c. 47, s. 2 . 

28 Vict. c. 36, s. 16 
28 & 29 Vict. c. 18, s 



4 
5 
8 
30 & 31 Vict. c. 35, s. 2 
3 
142, 



7 
10 



248 

461 

. 379 

. 440 

. 583 

. 583 

. 580 

. 571 

. 572 

335, 341 

334, 335, 

337 

. 509 

300, 343, 



468, 469, 560, 569 



29 

31 & 32 Vict. c. 54, s. 5 . 

32 & 33 Vict. c. 24 . 

s. 1 . 
Sclied. 1 



68, s. 4 
71, s. 19 



33 & 34 Vict. c. 9, ss. 30—34 
49, s. 1 . 
77, s. 18 
79, s. 20 
c. 93, (Married Women's Pro- 
perty Act, 1870) . 324, 346, 
349, 350 



570 
350 
12 
513 
513, 
531 
513 
396 
437 
437 
421 
397 
528 
407 



PAGE 

33 & 34 Vict. c. 93, s. 1 .81, 87, 349 

11 . 81, 349 
c. 99 . . 12, 513 

34 & 35 Vict. c. 112 . . 546 

s. 18 . 546 
36 & 37 Vict. c. 60 (Judicature 



Act, 1873) 

s. 24, subs. 7 
25, sulis. 8 
11 
s. 39 
46 
49 
60 
07 
& 38 Vict. 
Women's 



325 

. 514 

15 

505, 517 

. 437 

. 553 

. 502 

. 454 

325, 334, 408, 570 

c. 50 (Married 

Property Act 



Amendment Act, 1874) 



324 
351 

s. 2 . 351, 352,491 

5 . . .351 

38 Vict. c. 14, s. 2 . . . 421 

38 & 39 Vict. c. 63 (Sale of 

Food & Drugs Act, 1875) . 54 

c. 77 (Judica- 
ture Act, 1875) . . 344 
s. 22 551, 553, 554 
s. 33 . . 335 
Appendi.v A., form No. 3 . 357 
„ C, Forms of Plead- 
ings, No. 14 . 372 
c. 80, s. 17 . . . . 201 

39 & 40 Vict. c. 59 (Appellate 

Jurisdiction Act, 1870) . 565 

s. 17 553, 554 

42 & 43 Vict. c. 59, s. 3 . . 356 

*43 k 44 Vict. c. 41 (Burial 

Laws Amendment Act, 

1880), s. 7 . . 401, 682 



TABLE OF RULES AND OEDERS 
CITED. 



JUDICATURE ACT (1875), 38 & 39 Vict. c. 77. 



Order 









PAGE 








PAGE 


II. 


rule 2 


. . 343 


Order 


XIL 


rule 7 


463, 567 


III. 


55 


2 . 


. 459 






33 8 • 


. 463 


IV. 


)) 


1 


. . 459 






„ 9 


. . 463 




j; 


2 . 


. 459 






33 12 . 


366, 463 




)3 


2(( 


. . 459 






33 12a 


366, 463 




5) 


3a 


454, 459 






„ 15 


. . 463 


V. 


)> 


1 


454, 462 


?? 


XIIL 


,3 1 


353, 354 




)? 


4rt 


556, 561 






,3 2 . 


. 463 


VI. 


!) 


1 


. . 460 






33 5a 


. . 462 


VIII. 


)) 


1 . 


. 459 






,3 6 


464, 568 


IX. 


J) 


1 


. . 460 


33 


XVI. 


33 1 


365, 370, 




5) 


1« 


. 567 








465, 568 




j; 


2 . 


. 460 






3, 2 . 


. 568 




)) 


3 


. . 461 






,3 3 


366, 371, 




7) 


4 . 


. 461 








568 




)J 


5 


. . 461 






33 ^ 


. . 371 




!J 


6 . 


. 461 






33 6- 


. 371 




» 


6 a 


. . 461 






3, 8 


. . 346 




)) 


7 


461, 568 






.3 10 . 


. 366 




» 


13 


460, 462, 

464, 567, 

568 






„ 10a 
33 13 . 

33 17 


. . 366 

. 344 

. . 481 




J) 


14 . 


. 567 






„18 . 


. 481 


X. 






. . 461) 






3, 19 


. . 481 


XL 






. 357 






,3 20 . 


. 481 




J? 


1 


. . 460 






3,21 


. . 481 




J) 


2 


. 356 


33 


XVIL 


33 1 


458, 466 






4 


. . 463 






„ 2 . 


. 366 


XIL 


J1 


1 . 


. 462 






33 4 


325, 347, 




J) 


2 


. . 462 








458, 465 




?) 


3 . 


. 462 






,3 5 . 


. 465 




3J 


4 


. . 567 






33 6 . 


365, 458, 




JJ 


5 


462, 567 








465 




3; 


6rt 


462, 567 






33 7 . 


458, 466 




>> 


(Jb 


. . 463 






33 8 . 


458, 466 



TABLE OF RULES AND ORDERS CITED. Ixxi 



Order 



XVII. 
XIX, 



XX. 

XXI. 

XXII. 

XXIII. 
XXIV. 



XXV. 

XXVI. 

XXVII. 



rule 9 
„ 2 
„ 3 



„ 5 

»11 
„14 . 
„16 
„17 . 
„ 18 . 
„20 
„21 
„22 . 
„24 
„28 . 
., 30 
,,31 . 

481 
„ 2 
» 3 
„ 4 
„ 1 
,. Ic 
„ 1 
„ 9 

„ 1 
„ 2 
„ 3 



XXVIII. 



„ 2 

„ 3 

,, 4 

„ 5 

„ 6 

„ 7 
„ 9 
„10 
„11 



rule 



PAGE 

458, 466 

343, 495 

344, 372, 

491 

120, 470, 

473, 488 

. 474 

, . 482 

. 496 

. 480 

482, 483 

. 484 

480, 482 

. 497 

. 482 

. 470 

. 472 

. 446 

. 446 

, 495, 554 

. . 567 

. 567 

300, 568 

. . 469 

. 469 

. 495 

. . 372 

. 524 

408, 500 

. . 498 

498, 500 

. . 522 

. 522 

47.9, 480, 

481, 492, 

493, 496, 

498, 537 

. 498 

. . 498 

. 500 

. . 500 

496, 537, 

545 

. 498 

500 

500 

459 

569 

477 

478 

478 

479 

478 

479 

479 



XXVIII. rule 10 . 


PAGE 

. 479 


»11 


. . 479 


„12 . 


478, 479 


„ 13 


. . 479 


XXIX. „ 1 . 


. 474 


„ 4 


. . 496 


» 5 . 


. 496 


„12 


. . 501) 


„14 . 


. 465 


XXX. 


. . 301 


„ 1 . 


300, 465, 


491 


, 493, 501 


XXXI. „ 2 . 


343, 503 


,, 5 


. 509, 512 


„ 7 . 


. 512 


„ 8 


. . 509 


„io . 


. 515 


„11 


. . 516 


„12 . 


. 515 


„13 


. . 517 


„14 . 


. 520 


„16 


. . 520 


„17 . 


. 521 


„18 


. . 521 


„20 . 


432, 522 


„21 


. . 521 


»22 . 


432,521 


„23 


. 511,547 


XXXV. „ 12 . 


455, 466 


„ 13 


455, 466 


XXXVI. „ 2 . 


. 569 


„ 3 


. . 500, 




523, 524 


„ 4 . 


500, 523 


„ 4a . 


500, 523 


„ 8 . 


. 523 


„ 9 


. . 523 


„io . 


. 523 


»11 


. 523 


„12 . 


. 523 


„13 


523, 525 


„14 . 


. 523 


„15 


. 523 


„17« 


. 523 


„18 


. 529 


„20 . 


. 529 


„21 


. 529 


„22 . 


. 552 


„ 22a 


552, 554 


„24 . 


. 552 


„33 . 


. 438 


^XXVII. rule 1 . 


. 526 


„ 3a . 


. 511 


„ 3/j 


. 511 


„ 3c . 


. 511 



Ixxii 



TABLE OF RULES AND ORDERS CITED. 









PAGE 










PAGE 


'^:XXVII. rule U 




511 


Order 


LI. 


rule 4 


. 466 




„ 3e 




511 


>■) 


LIIL 


5) 


2 . 


. 562 




» 3/. 




511 






3) 


3 


. 562 




» 3r/ 




511 






)! 


4 . 


499, 553 




„ 4 . 




526 


)> 


LIV. 


55 


2 


. . 521 




„46 




566 






5) 


4 . 


. 499 


XXXIX. 






554 






55 


Ga 


. . 499 




„ \a 


560 


557 
561 


>> 


LV. 


55 


1 


336, 338 
. 334, 




„ 16 




556 








469, 


553, 570 




,; 2 . 




557 






55 


3 . 


. 467 




„ 3 




557 


5J 


LVII. 


55 


o 


. . 499 




„ 5 . 




557 






55 


6a 


. 495 


XL. 


„ 2 




554 


JJ 


LVIIa. 






553, 554 




„ 3 . 




553 


j; 


LVIII. 


55 


1 


. . 551 




„ 4« 


. 554, 562 






55 


2 . 


. 562 




„ 9 . 




562 






!5 


3 


. . 563 




„ 10 


. 554,556 






55 


4 . 


562, 563 


XLI. 


„ 1 
„ 6 . 




552 
545 






55 
5 5 


5 

5(«, . 


. . 564 
556, 565 


XLII. 


2 




432 






55 


6 


. . 564 




„ 4 ■ 




432 






55 


7 . 


. 564 




„ 5 




432 






55 


8 


. . 563 




„ 8 . 




367 






55 


10 . 


. 560 




„ 15 . 




552 






55 


12 


565 




„20 




432 






55 


13 . 


. 565 




„22 . 




554 






55 


15 


. 560, 562 


XLIV. 




. 432 


,438 






55 


16 . 


. 564 




2 




433 






55 


17 


. . 564 


L. 


" 1 ' 

-7 


346 


355 
,351 


>> 


LIX. 


55 


2 


537, 545 






*^ tx^y o<^c<.A.^^ei^ uyv>4<- , 



PART I. ^7^/^5\ 
THE LAW OF LIBEL flS^^^Si^tp^i. 

CHAPTEE L 

IXTKODUCTOKY. 

No man may disparage the reputation of another. 
Every man has a right to have his good name maintained 
imimpaircd. This right is a jus in rem^ a right absolute 
and good against all the world. 

Words which produce any perceptible injury to the 
reputation of another are called Defamatory. 

Defamatory words, if false, are actionable. 

False defamatory words, if written and published, 
constitute a libel ; if spoken, a slander. 

Words which merely might tend to produce injury to 
the reputation of another are not defamatory, and even 
though false are not actionable, unless as a matter of 
fact some appreciable injury has followed from their use. 

On the other hand, words which on the face of them 
must be injurious to the reputation of the person to 
whom they refer, are clearly defamatory, and, if false, 
are actionable, without proof that any particular damage 
has followed from theii* use. 

llliistnitloiis. 

To say " A. is a coward," or " a liar," or " a rascal," is not defamatory, 
unless it can be proved that soiue one seriously believed and acted on the 



2 INTRODUCTION. 

assertion, to tlie prejudice of A. Sucli words, thougli false, are not action- 
able without some CAddence to show that A.'s reputation has as a matter of 
fact been actually impaired thereby. De minimis non curat lex. 

To say of B. : — " He forged his master's signature to a cheque for £100," 
is clearly defamatory, and, if false, actionable. It must injure B.'s reputa- 
tion to bring such a specific charge against him. 



In any given case, the fact that the words employed 
by the defendant have perceptibly injured the plaintiff's 
reputation may be either 

(i.) presumed from the natm*e of the words them- 
selves ; or, 
(ii, ) proved by evidence of their consequences. 
(i.) It Avill be presumed from the natiu-e of the words 
themselves, 

(«) If the words, being wiitten and published or 
printed and published, are in any way disparag- 
ing to the plaintiff or tend to bring him into 
ridicule and contempt. 
(h) If the words, being spoken, 

(1.) charge the plaintiff with the commission of 

some indictable offence ; 
(2.) impute to the plaintiff a contagious dis- 
order tending to exclude him from society ; 
(3.) arc spoken of the plaintiff in the way of 
his profession or trade ; or disparage him 
in an office of j)ublic trust. 
In all these cases the Avords are said to be actionable 
per se, because on the face of them they clearly must 
have injured the plaintiff' 's rejmtation. ' 

(ii.) But in all other cases of sj)oken words, the fact 
that the plaintiff' 's reputation has been injured thereby, 
must be proved at the trial by evidence of the con- 
sequences that directly resulted from their utterance. 
Such evidence is called " Evidence oi special damage," as 
distinguished from that general damage which the law 



INTRODUCTION. 3 

assumes, without express proof, to follow from the 
employment of words actionable ^j(?r ^e. 

Illustrations. 

To say of A. " He is a forger and a felon ; '' or " He hath tlie French 
jiox ; " to call a physician a c|uack, a tradesman a bankrupt, or a lawyer a 
knave ; to say of a magistrate that he is a corrupt judge ; is in each case 
actionable Avithout proof of sjieeial damage. A foriiori, if the words be 
written, or printed, and published. 

But to call a man a cheat, a rogue, and a swindler, or to call a woman an 
adulteress, is not actionable, without proof of special damage, if the words 
be spoken only ; but is actionable 2)er se, if the accusation be reduced into 
writing and published to the world. 

Thus the presumption that words are defamatory arises much 
more easily in cases of libel than in cases of slander. Many 
words which if printed and published would be presumed to 
have injured the plaintiff's reputation, will not bo actionable 
2')er se, if merely spoken. The reasons for this distinction are 
obvious : — 

1. Vox emissa volat ; litera scrlpta manet. The written or 
printed matter is permanent, and no one can teU into whose 
hands it may come. Every one now can read. The circulation 
of a newspaper is enormous, especially if it be known to contain 
libellous matter. And even a private letter may turn up in 
after years, and reach persons for whom it was never intended, 
and so do incalculable mischief. Wliereas a slander only 
reaches the immediate bystanders, who can observe the manner 
and note the tone of the speaker, — who have heard the 
antecedent conversation which may greatly qualify his asser- 
tion, — who probably are acquainted with the speaker, and 
know what value is to be attached to any charge made by him; 
the mischief is thus much less in extent, and the publicity less 
durable. 

2. A slander may be uttered in the heat of a moment, and 
under a sudden, provocation ; the reduction into writing, and 
the publication, of a libel show greater deliberation and malice. 

3. A third reason is sometimes given, that a libel is more 
likely to lead to a breach of the peace. But I doubt if this is 
so. A man would be more tempted to personally chastise a 

u L' 



4 INTRODUCTION. 

villain who slandered him to his face, than a libeller who 
lampooned him in the papers. Even if it were so, it would 
tend to explain why libel is a crime and slander not, rather 
than to account for the distinction just pointed out between 
the evidence required in the respective civil actions. For this 
is a further important difference between Slander and Libel : 
that for every libel criminal proceedings may be taken by way 
of information or indictment, i f th e person defamed does not 
desire damages : whereas a slander, unless it be blasphemous, 
seditious, or obscene, is not criminal at all. 

Neither do the first two reasons assigned appear any more 
satisfactory to Mr. Starkie than this last one does to me. He 
urges with great force in his Commentary prefixed to " Folkard 
on Slander and Libel," 4th edition, p. 28, that the distinction 
taken by our law between slander and libel in this respect 
" must be regarded as an absolute peremptory rule, not founded 
on any obvious reason or principle. If damage is to be pre- 
sumed from publishing such a charge in w^riting, why is not 
some damage also to be ''presumed from publishing the fact 
orally % The extent of publicity, and quantity of damage to be 
presumed in the one case rather than in the other, is obviously 
casual and uncertain, and rather affects the measure and 
quantum of damages than any principle of civil liability." 
And so again on p. 31, " the extent of mischief merely affects 
the quantum of damages, and not the right of action." But 
with all deference to the learned author, the mischief com- 
plained of is the injury to the plaintiff's reputation and not the 
pecuniary damage he has suffered ; and in discussing whether 
any such injury has been inflicted to any appreciable degree 
surely the mode and extent of the publication of the defamatory 
words are relevant matters for enquiry. The expression " quantum 
of damages " when applied to this question is misleading ; for it 
implies that some damages at least are clearly due, and that the 
only question is how much. Whereas, once grant that even 
nominal damages are due and cadit qucestio : thei'e is no 
longer any distinction between slander and libel, as soon as it 
is admitted that the action lies. It is precisely where it is not 
clear that any injury at all has been inflicted, where no 
pecuniary damage is proved, and the Court is doubting if any 
right of action exists, that the distinction adverted to arises. 



INTRODUCTION. 5 

The Courts, in the absence of any evidence of special damage, 
must either nonsuit the plaintiff, or say, " From the nature of 
the words used, and the circumstances in which they were 
uttered or published, we can see that they nius,i have injured 
the plaintiff's reputation." And they are more inclined, and 
rightly more inclined, to take the latter course when the words 
are printed and published to the world than where they are 
merely uttered to a few. Anyhow the distinction has been 
recognised in English law by Hale, C.B., in Kiw] v. La]ie, 2 
Vent. 28, Hardres, 470 ; by Lord Hardwicke, C. J., in Bradley v. 
Metlnvyn (1737), Selw. N.P., 982, and by Lord Mansfield, C.J., 
in Thoiiey v. Lord Kerry, 4 Taunt. 855, 3 Camp. 214, n., and in 
numerous other cases, and is far too well established to be ever 
shaken. 

The intention or motive with which the Avords were 
employed is as a rnle immaterial. If the defendant has 
in fact injnred the plaintiff's reputation, he is liable, 
although he did not intend so to do, and had no such 
pui-pose in his mind when he spoke or wi'ote the words. 
Every man must be presumed to intend and to know the 
natm-al and ordinary consequences of his acts : and this 
presumption (if indeed it is ever rebuttable) is not 
rebutted merely by proof that at the time he uttered or 
published the words the defendant did not attend to or 
think of their natural or probable consequences, or hoped 
or expected that these consequences would not follow. 
Such proof can only go to mitigate the damages. 

Sometimes, however, it is a man's duty to speak fully and 
freely, and mthout thought or fear of the consequences f 
and then the above rule does not apply. The words are 
privileged by reason of the occasion on which they were 
employed ; and no action lies therefor, unless it can be 
XH'Oved that the defendant was actuated by some special 
spite or some wicked and malicious motive. (See post^ 
Chapters YIII. and IX.) But in all other cases (although 
the pleader invariably alleges that the words were spoken 



6 INTRODUCTION. 

or jmblislied falsely and maliciously) malice in fact need 
never be proved at the trial ; the ^vords are actionable, 
if false and defamatory, although spoken or published 
accidentally or inadvertently, or with an honest belief in 
their truth. 

Illustrations. 

Tlie Protestant Electoral Union jDublished a book called " The Con- 
fessional Unmasked." Their motive in so doing was " :iot only innocent 
but praiseworthy," viz. : — to promote the spread of the Protestant religion, 
by exposing the abuses of the Eoman Catholic system ; but certain passages 
in the book were necessarily oliscene. Held that its publication was a 
misdemeanour. All copies which the defendant had for sale were ordered 
to be destroyed as obscene books. Neither the law nor the religion of 
England permits anyone to " do evil that good may come." 

R. V. Hicklin, L. R. 3 Q. B. 371 ; 37 L. J. M. C. 89 ; 16 W. R. 

801 ; 18 L. T. 395 ; 11 Cox C. C. 19. 
Steele v. Brannan, L. R. 7 C. P. 261 ; 41 L. J. M. C. 85 ; 20 

W. R. 607 ; 26 L. T. 509. 
And see R. v. Bradlaugh d: Besant, 2 Q. B. D. 569 ; 46 L. J. 
M. C. 286. 
If a man deliver by mistahe a paper out of his study Avhere he has just 
written it ; he Avill it seems be liable to an action, if the paper prove 
libellous, although he never intended to publish that paper, but another 
innocent one. 

Note to Mayne v. Fletcher, 4 M. & Ry. 312 ; cf. R. v. Paine, 
5 Mod. 167. 
The plaintiff told a laughable story against himself in company : the 
defendant published it in the newspaper to amuse his readers, assuming 
that the plaintiff would not object. The j^laintiff recovered damages, .£10. 
Cool- v. JFard, 6 Ring. 409 ; 4 M. & P. 99. 
For though he told it of himself to his friends, he by no means courted 
public ridicule. And that the publication was " onli/ in jest," has long been 
held no defence. 

Where a clergyman in a sern:on recited a story out of Fox's Martyrology, 
that one Greenwood being a perjured person and a great persecutor, had great 
plagues inflicted upon him, and was killed by the hand of God ; whereas 
in truth, he never was so plagued, and was himself actually present at that 
discourse, — the words being delivered only as a matter of history, and not 
with any intention to slander, it was adjudged for the defendant. 

Ch-eenwood v. Prick, Cro. Jac. 91, cited in 1 Camp. 270 ; and also in 
R. V. Williams, 13 How. St. Tr. 1387. 
But Lord Denman and the court of Q. B. said most positively in Hearner. 
Stowell, 12 A. & E. 726, that this case is not law. Mr. Greenwood would 
therefore in the present day have recoveretl at least nominal damages. 



INTRODUCTION. 7 

A barrister, editing a book on the Law of Attorneys, referred to a case, 
He, Blake, reported in 30 Law Journal Q. B. 32, and stated that Mr. Blake 
was struck off the rolls for misconduct. He was in fact only suspended for 
two years, as appeared from the Law Journal r«port. The publishers were 
held lial)le for this carelessness, although of course neither they nor the 
writer bore Mr. Blake any malice. Damages £100. 

FAale v. Btevens and others, 4 F. & F. 232 ; 11 L. T. 543. 

The printers of a newspaper Ijy a mistake in setting up in tj^pe the 
announcements from the London Gazette, placed the name of the plaintiff's 
firm under the heading "First Meetings under the Bankruptcy Act" 
instead of under " Dissolutions of Partnership." An ample apology was 
inserted in the next issue : no damage was proved to have followed to the 
plaintiff : and there was no suggestion of any malice. In an action for 
libel against the proprietor of the paper, the jury awarded the plaintiff £50 
damages. Held that the publication was libellous, and that the damages 
awarded were not excessive. 

Shepheard v. Whita'ker, L. E. 10 C. P. 502 ; 32 L. T. 402. 



False defamatory ^vords then, if spoken, constitute a 
slander : if AVi'itten and published, a libel. The word 
"wiitten" includes any i^rinted, painted, or any other 
permanent representation not transient in its nature as 
are sp'oken words. 

The ^^T.'iting may be on paper, parchment, copper, 
wood, or stone, or on any kind of substance in fact ; 
and may be made with any instrument, pen and ink, 
blacklead-pencil {Geary v. Physic, 5 B. & C. 238), or in 
chalk, &c. A picture or efhgy may also be a libel, or 
any other mark or sign exposed to view and conveying 
a defamatory meaning. (5 Eep. 125.) 

A libel is defined in the Civil Code of the State of 
I^ew York, s. 29, to be a '' false and unprivileged publica- 
tion by wiiting, printing, picture, effigy, or other fixed 
representation to the eye, which exposes any person to 
hatred, contempt, ridicule, or obloquy, or which causes 
him to be shunned or avoided, or which has a tendency 
to injure him in his occupation." 

By s. 30 of the same code, a slander is defined to be 
" a false and unprivileged publication, other than libel. 



INTRODUCTION. 



which . . . . by natural consequence causes . 



damage." 



Illustrations. 



A caricature or scandalous painting is a libel. Anon. 11 Mod. 99. 
Austin V. Cnli^epiier, 2 Show. 313 ; Skin. 123. 
Du Bost V. Beresford, 2 Camp. 511. 
A chalk mark on a wall may be a libel, and as the wall cannot con- 
veniently be brought into Court, secondary evidence may be given of the 
inscription. 

Mortimer v. M'Callan, 6 M. & W. 58. 
See Spall v. Massey and others, 2 Stark. 559. 
A statue may be a libel ; so is fixing up a gallows against a man's door. 

HaAvldns' Pleas of the Crown, 8th edition, 542 ; 5 Rep. 125, b. 
Hieroglyphics, a rebus, an anagram, or an allegory may be a libel. 
Ironical jiraise may be a libel. 

A man's reputation may also be injiu'ed by the deed 

or action of another without his using any words ; and 

for such an injury he has an action on the case ; but 

such cases arc not within the scope of the present 

treatise. 

Illustrations. 

A banker having in his hands sufficient funds belonging to his customer 
dishonours his cheque : the customer may recover substantial damages, 
■svithout proof of any special damage ; for it is clear that such an act must 
injure the customer's reputation for solvency. 

Marzetti v. Williams, 1 B. & Ad. 415. 

PioUnson v. Marchanf, 7 Q. B. 918 ; 15 L. J. Q. B. 134 ; 10 Jur. 

156. 
Eolin and another \. Steward P. 0., 14 C. B. 595 ; 23 L. J. C. P. 
148 ; 18 Jur. 576 ; 2 C. L. R. 759. 
Defendant caused plaintiff's goods to be seized on an unfounded claim 
for debt ; the neighbours consecjuently deemed the plaintiff insolvent. The 
plaintiff was held entitled to suljstantial damages. 

Brewer v. Dew and another, 11 M. & W. 625. 
Bracegirdle v. Orford, 2 Maule & S. 77. 
The defendant set up a lamp on the wall adjoining the plaintiflf's 
dwelHng-house and kept it burning in the daytime, thereby inducing the 
passers-by to believe tliat plaintiflf's house was a brothel. This was held to 
be a trespass to the wall and being permanent in its nature also a libel in 
effigy. 

Jefferies v. Duncombe, 2 Camp. 3 ; 11 East, 226. 
SjmU y. Massey, 2 Stark. 559. 
Plunket V. Gilmore, Fortescue, 211. 



INTRODUCTION. 9 

And so as to " riding Skimmington," " rough music," burning in eftigy, 
and other modes of holding a man up to public ohlo(iuy without especial 
words of defamation, 

See /Sm" William Bolton v. Dean, cited in Austin v. Culpcpjw, 

Skin. 123 ; 2 Show. 313. 
Mason v. Jennings, Sir T. Eaj^m. 401. 
Cropp V. Tilney, 3 Salk. 226. 
So too in actions of false imprisonment and malicious prosecution, the 
jury may award damages for the injury done to the plaintiff's reputation 
by the charge made against him, and by his being marched in custody 
through the public streets ; although in the former, the gist of the action is 
the direct trespass to the person, and in the latter the maliciously setting 
the law in motion without reasonable or probable cause. 



In Roman law there are many instances given in v*hich a man's reputa- 
tion was assailed, not by words, Init by acts. E.g. : 

(i.) By refusing to accept a solvent person as surety for a debt, intend- 
ing thereby to impute that he is insolvent. (D. 2, 8, 5, 1.) 

(ii.) By claiming a debt that is not due, or seizing a man's goods for a 
fictitious debt, with intent to injure his credit. (Gai. III. 220 ; 
Just. Inst. IV. iv. 1 ; D. 47, 10, 15, 33.) 

(iii.) By claiming a person as your slave, knowing him to be free. (D. 
47, 10, 12, & 22.) 

(iv.) By forcing your way into the house of another. (D. 47, 10, 23, 
& 44.) 

(v.) By persistently following about a matron or young girl respectably 
dressed, or a youth still wearing the prajtexta, such constant 
pursuit being an imputation on their chastity. (Gai. III. 220 ; 
Just. Inst. IV. iv. 1 ; D. 47, 10, 15, 15—22.) 

(vi.) By needlessly fleeing for refuge to the statue of the emperor, 
thereby making it appear that some one was unlawfully op- 
pressing you. (D. 48, 16, 28, 7) ; though it is dithcvdt to see in 
this case how it was determined Avho was the right plaintiff. 



The person defamed has a civil remedy to recover 
damages, and in some cases he can also proceed criminally 
by way of information or indictment, and have the 
dcfamer punished as an offender against the state. But 
there is now no method of anticipating or preventing a 
libel or a slander ; there is no longer any censorship of 
the press in this country. Any man is free to speak or 
to write and publish whatever he chooses of another, 



lo INTRODUCTION. 

subject only to this, that lie must take the consequences, 
should a jury deem his words defamatory. This is what is 
meant by " the liberty of the j)ress." 

"The liberty of the press," says Lord Mansfield, in 
R. Y. Dean of St. Asaph., 3 T. E. 431, n., " consists in 
printing without any previous licence, subject to the 
consequences of law." Lord Ellenborough says in 
R. y. Cohhett, 29 Howell's St. Tr. 49: "The law of 
England is a law of liberty, and consistently with this 
liberty, we have not what is called an imprimatur ; there 
is no such preliminary licence necessary ; but if a man 
publish a paper, he is exposed to the penal consequences, 
as he is in every other act, if it be illegal." Lord 
Xenyon shortly puts it thus in R. v. Cidhell., 27 Howell's 
St. Tr. 675 : "A man may publish anything which 
twelve of his countrymen think is not blamable." 

But it was by do moans always so in England. It was 
quickly perceived that the printing press may be as great a 
power for evil as for good. And whenever any large jiroportion 
of any nation is disaffected towards the Government, to allow a 
free press is almost impossible. 

(i.) The first plan adopted by our Enghsh monarchs was to 
keep all the printing presses in their own hands, and allow no 
one to print anything except by special Royal licence. All 
printing presses were thus kept under the immediate super- 
vision of the King in Council, and regulated by proclamations 
and decrees of the Star Chamber by virtue of the King's 
Prerogative. In 1557 the Stationers' Company of London was 
formed. The exclusive privilege of printing and publishing in 
the English dominions was thus given to ninety-seven London 
stationers and their successors by regular apprenticeship, and 
the Company was empowered to seize all publications by men 
outside their guild. Later, by a decree of the Star Chamber 
in 1586, one printing press was allowed to each Universit3\ 

(ii.) Not content with this government monopoly of the " Art 
and mysterie of Printing," which continued, in theory at all 
events, till 1637, Queen Elizabeth, in 1559, determined to have 



CENSORSHIP OF THE PRESS. ii 

all books read over by loyal bishops and privy councillors before 
they were allowed to go to the official press. In 1586 the Star 
Chamber enacted that all books should be read over in manu- 
script, and licensed by either the Archbishop of Canterbury or 
the Bishop of London, save law books, which were to be read 
and licensed by the Chief Justice of either Bench or the Lord 
Chief Baron (a practice which continued down to the middle of 
the last century; see the prefaces to Burrows' and Douglas' 
Keports). Subsequently the Master of the Eevels usurped the 
right of revising poems and plays, and the Vice-Chancellors of 
the Universities were allowed for convenience sake to license 
books to be printed at the University presses. It was soon 
found impossible to restiict the number of printing-presses in 
the country, and the government therefore insisted all the more 
vehemently that no book should be "published without a previous 
licence. By the Star Chamber decree dated July 11th, 1637, 
all printed books were required to be submitted to the licensers 
and entered upon the registers of the Stationers' Company before 
they could be published ; if this was not done, the printer was 
to be fined, and for ever disabled from exercising the art of 
printing, and his press and all copies of the unlicensed book 
forfeited to the Crown. The old word " Im2yrhnatur"=" let it 
be printed," was still used to denote the consent of the licenser 
to its 2^ublication. After the abolition of the Star Chamber, 
the Long Parliament issued two orders, March 9th, 1642, and 
June 14th, 1643, very similar in effect to the decree of the 
Star Chamber last mentioned. Against these orders Milton 
published his noble but ineffectual protest, the " Areopagitica " 
(November 24th, 1644). The censorship of the press continued 
in England till 1695, and then its abolition was rather acci- 
dental than otherwise. (See Macaulay's " History of England," 
c. xix., vol. iii., pp. 399—405 ; 13 & 14 Car. II., c. 33 ; Pro- 
clamation of May 17th, 1680 ; 1 Jac. II., c. 17.) 

(iii.) A third plan is to allow any book to be printed and 
published without any supervision or licence ; but as soon as 
the attention of the Government is called to its harmful 
tendencies, to seize all the stock at the publishers and book- 
sellers, and prevent the publisher from issuing any fi;rther 
copies. The Lord Lieutenant was till the year 1875 em- 
powered to do this in Ireland, should any work appear to him 



12 INTRODUCTION. 

seditious. Magistrates in England may deal thus with books 
proved to be obscene by virtue of Lord Campbell's Act (20 & 
21 Vict., c. 83). The Court of Chancery and the House of 
Lords have occasionally by injunction forbidden the further 
publication of libels which they deemed contempts of court. 
But in all other cases, neither the Crown nor any court of law 
can restrain the indiscriminate sale or distribution of aoy work, 
however pernicious they may deem it to be. 

(iv.) Our present law permits any one to say, Avrite, and 
publish what he pleases ; but if he make a bad use of this 
liberty, he must be punished. If he unjustly attack an indi- 
vidual, the person defamed may sue for damages ; if, on the 
other hand, the words be written or printed, or if treason or 
immorality be thereby inculcated, the offender can be tried for 
the misdemeanour either by information or indictment. In order 
that the criminal might be easily detected, it v/as enacted in 
1712 that no person, under a penalty of ;620, should sell or 
expose for sale any pamphlet without the name and place of 
abode of some known person by or for whom it was printed or 
published, written or printed thereon. (10 Anne, c. 19, s. 118, 
repealed in 1871 by the 33 & 34 Vict., c. 99.) A similar 
enactment as to newspapers, 6 & 7 Will. IV., c. 76, was also 
repealed by the 32 & 33 Vict., c. 24. And now every paper or 
book which is meant to be published or dispei-sed must bear on 
it tlie name and address of the printer (2 & S Vict., c. 12, s. 2) ; 
and the printer must for six calendar months carefully preserve 
at least one copy of each paper printed by him, and write 
thereon the name and address of the person who employed and 
paid him to print it (39 Geo. III., c. 79, s. 29). Newspapers 
were indeed formerly regarded with gi-eat jealousy by the 
Government, and subjected to heavy duties. Under Charles II. 
and James II. the London Gazette (a small sheet appearing twice 
a week, every Monday and Thursday) was the only paper per- 
mitted to publish political news. Even their size was regulated 
by statute. The G Geo. IV., c. 119, first allowed newspapers to 
be printed on paper of any size. Moreover, till the 18 Vict., 
c. 27, they had to be printed on stamped paper. But in spite 
of all such petty restrictions, our press has been, ever since the 
passing of Fox's Libel Act, 32 Geo. III., c. GO, the freest in the 
world. 



INJUNCTION. 13 

The only vestige remaining of such censorship is the 
control of the Lord Chamberlain over plays. By the 
Theatres Eegulatiou Act, 1843 (6 & 7 Vict. c. 68), s. 14, 
it is enacted that it shall be lawful for the Lord 
Chamberlain for the time being, Avhenever he shall be 
of oj^tinion that it is fitting for the preservation of good 
manners, decorum, or of the public peace so to do, to 
forbid the acting or presenting any stage play, or any 
act, scene, or part thereof, or any prologue or epilogue, 
or anj^ part thereof, anywhere in Great Britain, or in 
such theatres as he shall specify, and either absolutely 
or for such time as he shall think fit. 

ISTo injunction can be obtained to prohibit the publica- 
tion or republication of any libel, or to restrain its sale. 
Prudential Assurance Co. v. Knott, L. E. 10 Ch. 142 ; 
44 L. J. Ch. 192 ; 23 W. E. 249; 31 L. T. 866. The 
matter must first go before a jury, who are to decide 
whether the words complained of are libellous or not. 
The Crown has no authority to restrain the press ; and 
the courts, whether of Law or of Equity, cannot, till 
after verdict, issue any injunction in respect of any 
libels, save such as are contempts of Court. [Saxhy v. 
EasterhrooJc, 3 C. P. D. 339 ; 27 W. E. 188.) 

There has been a sti^ange conflict of authority on this point. 
As long ago as 1742, it was clearly laid down in Roach v. Read 
and another, 2 Atk. 469 ; 2 Dick. 794, that Courts of Equity had 
no jurisdiction over actions of Ubel and slander, whether public 
or private, except as contempts of their own Courts. The Courts 
of Common Law had at that time no power to grant injunctions 
at all. No doubt in the early days of arbitrary prerogative the 
Court of Star Chamber occasionally restrained the publication 
of works alleged to be seditious. But Scroggs was impeached 
for attempting to introduce the practice into the King's Bench. 
However, in Du Bost v. Beresford, 2 Camp. 512, Lord Ellen- 
borough, in deciding that a libellous picture could have no legal 
value as a work of art, said : " Upon an application to the Lord 



14 



INTRODUCTION. 



Chancellor, lie would have granted an injunction against its 
exhibition, and the plaintiff was both civilly and criminally 
liable for having exhibited it." This, however, was a mere obiter 
clictum, and is said to have greatly surprised all practitioners 
in the Courts of Equity ; it was expressly disavowed by Lord 
Campbell in the case of the Emperor of Austria v. Day and 
Kossuth, 3 De G. F. & J. 217, 239 ; 7 Jur. N. S. 639 ; 30 L. J. 
Ch. 690. It is, however, stated in the note to Southey v. 
Shertvood, 2 Mer. p. 441, that in a case of Burnett v. Chetivood, 
Lord Chancellor Parker granted an injunction to restrain the 
printing and publishing of a translation into English of a book 
written in Latin, and which he thought had better remain in 
Latin; "he looked upon it," he said, "that this Court had a 
superintendency over all books, and might in a summary way 
restrain tlie printing or publishing [of] any that contained 
reflections on religion or morality." The application was 
aj)parently made by an executor in order to protect his copy- 
right in a book written by his testator; but the whole report 
is of very doubtful authority, being merely a note of the case 
extracted from a manuscript volume of uncertain authorship. 
See also Gurncy v. Longman, 13 Ves. 493, 507; Bathurst v. 
Kearsley, ih., 494. In Chirlx: v. Freernan, 11 Beav. 112; 17 
L. J. Ch. 142 ; 12 Jur. 149, Lord Langdale, M.R., laid it down 
most clearly that a Court of Equity w'ould not interfere by 
injunction to prevent the publication of a libel, saying that if it 
did so it would be "reviving the criminal jurisdiction of the 
Star Chamber." And in Fleming v. Newton, 1 H. L. C. 363, 
Lord Cotteuham was most distinctly of opinion that, whatever 
niceties might be shown to exist in Scotch law, such an inter- 
ference with the liberty of the press was contrary to every 
principle of English law. See also the observations of Lord 
Eldon in Gee v. Pritchard, 2 Swan. 413, and of Sir L. Shad- 
well in Martin v. Wright, 6 Sim. 297. 

In this state of the authorities, Malins, V.C, in Springhead 
Spinning Co. v. Riley, L. R. 6 Eq. 551 ; 37 L. J. Ch. 889 ; 16 
W. R. 1138 ; 19 L. T. 64, and Dixon v. Holden, L. R. 7 Eq. 
488 ; 17 W. R. 482 ; 20 L. T. 357, introduced an exception to 
the rule ; for he decided that a Court of Equity had jurisdiction 
to restrain the publication of any document, which tended to 
the destruction or deterioration of the plaintiff's property, or 



INJUNCTION. 15 

even of the plaintiff's professional reputation by which property- 
is acquired. This decision professed to follow that of Lord 
Langdale, M.R., in Roiitli v. Webster, 10 Beav. 501, in which 
case an injunction was granted to restrain, not indeed a libel, 
for there was none, but an improper and unauthorized use by the 
defendants of the plaintiff's name as a trustee of the defendant's 
joint-stock company. In a subsequent case, Mulkern v. Wanly 
L. B. 13 Eq. 019 ; 41 L. J. Ch. 404 ; 20 L. T. 831, Wickens, 
V.C, commented very strongly on the decision in Dixon v, 
Holden, as introducing a " wholly new " rule, and one contrary 
to the previous decisions ; and refused the injunction therein 
prayed for, as a violation of the liberty of the press. See also 
James v. James, L. R 13 Eq. 421 ; 41 L. J. Ch. 258 ; 20 L. T. 
508 ; Clover v. Royden, L. R. 17 Eq. 190 ; 43 L. J. Ch. 005 ; 
22 W. R. 254 ; 29 L. T. 039 ; and the American cases of 
Brandreth v. Lance, 8 Paige 24 ; and Hoyt v. McKenzie, 3 
Barb. Ch. K 820. 

All doubts on the point were finally set at rest by the Court 
of Appeal in Prudential Assurance Co. v. Knott, L. -B. 10 
Ch. 142 ; 44 L. J. Ch. 192 ; 23 W. R. 249 ; 81 L. T. 800 ; 
where a very strong Court (Lord Cairns, L.C., and James and 
Mellish, L.JJ.), decided that the Court of Chancery has no 
jurisdiction to restrain the publication of a libel as such, even if 
it is injurious to property ; and expressly overruled Dixon v. 
Holden and Springhead Spinning Co. v. Riley. This deci- 
sion was followed by tlie Court of Appeal in Fisher and Co. 
V. Apollinaris Co., L. R. 10 Ch. 297 ; 44 L. J. Ch. 500 ; 
28 W. R. 400 ; 82 L. T. 028, and in Ireland in Hammer- 
smith Skating Rink Co. v. Dublin Skating Rink Co., 10 
Ir. R. Eq. 235. Vice-Chancellor Malins, however, appears 
to remain of the same opinion still ; for in Thorleys Cattle 
Food Co. V. Massam, Ch. D. 582 ; 40 L. J. Ch. 713, he 
decided that the decision of the Court of Appeal Avas in 
some way controlled or overruled by sub-s. 8 of s. 25 
of the Judicature Act, 1878, which had come into force in 
the meantime. But it has since been most clearly laid down 
by James, L.J., that that sub-section in no way alters the 
principles on which a Court of Equity should act in granting 
injunctions; Day v. Brownrigg, 10 Ch. D. 307 ; 48 L. J. Ch. 
173; 27 W. R. 217; 39 L. T. 220, 553; Ga.^kin v. Balls, 13 



i6 INTRODUCTION. 

Ch. D. 824 ; 28 W. K 5.52. And Lord Coleridge, C.J., appears 
to be of the same opinion in 3 C. P. D. SIS. The decision of 
Malins, V.C., on the interlocutory application in Thorleys Cattle 
Food Co. V. Massam, must therefore be considered to be over- 
ruled, as well as his previous decision in Dixon v. Holden; and 
the Master of the Rolls has, according to Lindley, J., 3 C. P. D. 
342, refused to follovf it (probably in Hinrichs v. Bevndes, 
Weekly Notes for 1878, p. 11). 

But these decisions in no way interfere with what is obviously 
quite a different matter — the right of the plaintiff to claiui an 
injunction on his writ in addition to damages, such injunction 
to be granted by the judge only after the jury have found the 
publication complained of to be a libel. Libel or no libel is 
pre-eminently a question for a jury, but after they have once 
decided it, the judge may, if he is of opinion that any repetition 
of the libel would be injurious to the plaintiff's property, grant 
an injunction restraining any repetition thereof, Saxhy v. Easter- 
brook, 3 C. P. D. 33<) ; 27 W. R. 188. Thorlei/s Cattle Food Co. 
v. Massam, 28 W. R. 295 ; 41 L. T. 542 ; (C. A.) 14 Ch. D. 763 ; 
28 W. R. 9C6 ; 42 L. T. 851 ; Thomas v. Williams, 14 Ch. D. 
804 ; 49 L. J. Ch. G05 ; 28 W. R. 983 ; 43 L. T. 91. See also 
the remarks of Lord Langdale, M.R., in Clark v. Freeman, 
11 Beav. 117, 8 ; and of the present Master of the Rolls in 
Hinrichs v. Berndes, Weekly Notes for 1878, p. 11. 

As to what libels amount to contempt of Court, see jwst, 
c. XVII., Seditious Libels. 



CHAPTER II. 

DEFAMATORY WORDS. 

Words which produce any appreciable injury to the 
reputation of another are called Defamatory. 

Diffamarc est in mala famd ijonere (Bartol.). The 
question in each case therefore is : Has the reputation 
of this individual plaintiff been appreciably impau'ed in 
consequence of the words employed by the defendant ? 
No general rule can be laid down stating absolutely and 
beforehand what words are defamatory and what not. 
Words which would seriously injure A.'s reputation 
might do B.'s no harm. Each case must be decided on 
its OA\TL facts. 

Defamation was formerly an ecclesiastical offence, cognizable 
only in the spiritual court ; and then defamatory words would be 
such as the ecclesiastical court would punish. But all such 
suits were abolished by the 18 k 19 Vict. c. 41. So now it is 
convenient to use the word " Defamation " as a general term 
embracing both " Slander " and " Libel." 

If in any given case the words employed by the 
defendant have appreciably injiu^ed the plaintiff 's reputa- 
tion, then the plaintiff has suffered an injuria^ which is 
actionable without proof of any damage. Every man 
has a right to be protected from defamation, as much' as 
from assault or bodily harm. " His reputation is his 
proj)erty, and if possible more valuable than other 
property " (^iwr Malins, Y. C, in Dixon v. Holden, L. R. 
7 Eq. 492 ; 17 W. R. 482 ; 20 L. T. 357) ; and just as 



1 8 DEFAMATORY WORDS. 

any invasion of a man's property is actionable witliout 
proof of any pecuniary loss, so is any disparagement of 
his reputation. Every man has a right to his good name, 
a right which no one may violate. And such a right is 
a real right ; all men are bound to forbear fi'om all such 
imputations against him as would amount to injuries to 
his reputation (2 Austin's Jurisprudence, p. 51). " It 
was the rule of Holt, C.J., to make words actionable 
whenever thej^ sound to the disreputation of the person of 
whom they were spoken, and this was also Hale's and 
Twisden's rule, and I think it a very good rule." [Per 
Fortescue, J., in Button v. Ilei/ward, 8 Mod. 24, re- 
ferring perhaps to Baker v. Pierce, 6 Mod. 24.) 

Whenever these Avords clearly " sound to the dis- 
reputation " of the plaintiff, there is no need of further 
proof, they are defamatory on the face of them, and 
actionable per se. The injiu'y to the reputation is the 
gist of the action, and wherever that is clear, there is no 
need to inquire whether there is any injurj^ to the pocket 
as well. But Adhere it is by no means clear from the 
words themselves that they must have injured the 
plaintiff's reputation, there the Court requires proof of 
some special damage to show that as a matter of fact the 
words have in this case impaired the plaintiff's good 
name. Proof of this kind is, as we have seen, required 
more frequently in actions of slander than of libel. 
Words which are merely uncivil, Avords of idle abuse, 
are clearly no ground for an action, unless it can be 
shoAvn that in fact some appreciable damage to the 
plaintiff has followed from their use. De minimis non 
curat lex. 

Mr. Townshend, the author of a learned American treatise on 
Slander and Libel, appears to me to fall into an error on this 
point. He devotes a whole chapter to maintaining "that 
pecuniary loss to the plaintiff is the gist of the action for slander 



GIST OF THE ACTION. 19 

or libel. If the language published has uot occasioned the 
plaintiff pecuniary loss (actual or implied), then no action can 
be maintained " (c. iv. § 57). Surely he might as well contend 
that the gist of an action of assault and battery was the doctor's 
bill the plaintiff had to pay. Is it not clear that injury to the 
plaintiff's reputation is the gist of the action, and special 
damage is but evidence of that injury % Every man has an 
absolute right to have his person, his property, and his reputa- 
tion preserved inviolate. Bacon commences his tract on the 
Use of the Law by this express declaration : — " The Use of the 
Law consisteth principally in these three things : 

" 1. To secure men's persons from death and violence. 

" 2. To dispose the property of their goods and lands. 

" 3. For preservation of their good names from shame and 
infamy 

"If any man beat, wound or maime another, or give false 
scandalous words that may touch his credit, the Law giveth 
thereupon an action of the case, for the slander of his good 
name ; and an action of Battery, or an appeale of Maime, by 
Avhich recompence shall be recovered, to the value of the hurt, 
dam mage or danger." Mr. Townshend would reduce Bacon's 
three uses of the law to two ; for he implies that the law will 
not redress a mere injury to the reputation unless it be accom- 
panied by an injury to the person or the property of the plain- 
tiff. Bacon merely requires that the words should " touch the 
l^laintiff's credit ;" where it is not obvious that the words must 
have that result, then the plaintiff must bring evidence of some 
material loss which will show that his credit has in fact been 
touched. 

And how does Mr. Townshend get over the fact that in nine 
cases of defamation out of every ten the plaintiff is never called 
on to prove that " pecuniary loss " which he maintains to be the 
gist of the action ? He has recourse to that time-honoured 
expedient, a legal fiction. He insists " that, where the law does 
protect reputation, it does so indirectly, by means of a fiction — 
an assumption of pecuniary loss. In theory, the action for 
slander or libel is always for the pecuniary injury, and not for the 
injury to the rej)utation. There are many such fictions intro- 
duced into the administration of the law, by means of which, 
■without changing the rule of law, the law is, in effect, changed." 



20 DEFAMATORY WORDS. 

That there be many such fictions is surely no ground for in- 
creasing their number by inventing a fresh one. And what an 
absurdity such a fiction would be. If I assert that the Prime 
Minister stole a penny bun, the law will solemnly presume, says 
Mr. Townshend, that the Prime Minister thereupon instantly 
incurred a money loss of, say, .£50. And how capricious is this 
fiction. For had I been content with calling the Prime 
Minister a liar, the law wonld not presume the loss of a farthing. 
Such a fiction also is opposed to the history of our law ; for we 
know that in Anglo-Saxon and in Norman times an exag- 
gerated value was set on a man's reputation. Evidence of a 
prisoner's good character would insure his acquittal of any 
crime. In short, all that is required by our common law is 
that the injury to a man's reputation should be appreciable, i.e.. 
capable of being assessed by a jury. And so no action lies for 
mere words of vulgar abuse, or for words which have inflicted 
no substantial injury on the plaintiff's reputation, on the 
principle Be oninlmis non curat lex. 

It is the more strange that Mr. Townshend should have made 
such an error ; because the language of the Judges in his own 
country is clear and express. Thus the Court of Appeals in 
New York lays down the law most distinctly in the following 
words : " The action for slander is given by the law as a remedy 
for ' injuries affecting a man's reputation or good name by 
malicious, scandalous, and slanderous words tending to his 
damage and derogation.' — 3 Bl. Com. 123. It is injuries affect- 
ing the reputation only which are the subject of the action." 
And then after referring to some examples of special damage, 
the Court continues : " These instances are sufficient to illus- 
trate the kind of special damage that must result from de- 
famatory words not otherwise actionable to make them so ; 
they are damages produced by, or through, impairing the re- 
putation. . . . The words must be defamatory in their nature ; 
and must in fact disparage the character ; and this disparage- 
ment must be evidenced by some positive loss arising therefrom 

directly and legitimately as a fair and natural result 

The special damages must flow from impaired reputation 

The loss of cliaracter must be a substantive loss, one which has 
actually taken place." Terwilliger v. Wands, 3 Smith (17 N. 
y. R.) 59, 63. It is clear from these expressions and also from 



LIBEL. 21 

the judgment in Wilson v. Goit, in the same volume, p. 443, 
that the Court of Appeals in New York considered that the 
loss of i-eputation was the gist of the action, and that special 
damage is but evidence of loss of reputation, and is necessary 
only where without some such evidence it would not be clear 
that the plaintiff's reputation had in fact been impaired. 



PAET I. 

LIBEL. 

In cases of libel, any words will be presumed defama- 
tory which expose the plaintiff to hatred, contempt, 
ridicule, or obloquj', which tend to injure him in his 
profession or trade, or cause him to be shunned or 
avoided by his neighboui'S. 

" Everything, printed or written, which reflects on 
the character of another, and is published without lawful 
justification or excuse, is a libel, whatever the intention 
may have been." [Per Parke, B., in G'Bnen v. Clement^ 
15 M. & W. 435.) The words need not necessarily 
impute disgraceful conduct to the plaintiff ; it is sufficient 
if they render him contemptible or ridiculous. {Cropp v. 
Tilney, 3 Salk. 226 ; Villers v. Momley, 2 Wils. 403.) 

Any written words are defamatory which impute to 
the plaintiff that he has been guilty of au}" crime, fraud, 
dishonesty, immorality, vice, or dishonoui-able conduct, 
or has been accused or suspected of any such misconduct ; 
or which suggest that the plaintiff is suffering from any 
infectious disorder ; or which have a tendency to injure 
him in his office, j)i'ofession, calling, or trade. And so 
too are all words which hold the plaintiff up to contempt, 
hatred, scorn, or ridicule, and which, by thus engendering 
an evil opinion of him in the minds of right-thinking 
men, tend to deprive him of friendly intercourse and 
society. 



22 DEFAMATORY WORDS. 

A libel need not necessarily be in writing or printing. 
Any caricature or scandalous printing, or effigy, will 
constitute a libel. (5 Eep. 125^. ; Anon. 11 Mod. 99 ; 
Austin Y. Culpepper.^ 2 Show. 313; Skin. 123; Jefferies 
V. Dimcomhe^ 11 East, 226 ; Du Bost v. Bercsford., 2 
Camp. 511.) But it must be something permanent in 
its nature, not fleeting, as are spoken words. 

It appears to be impossible to define a libel with any greater 
precision or lucidity. I proceed at once therefore to give 
instances. 

Illudrations. 

It is libellous to write and publish of a man that he is — 
" an infernal villain," 

Bdl V. Stone, 1 B. & P. 331 ; 
" an impostor," 

Cooke V. Hughes, E. & M. 112. 

Camfhell v. Spottiswoode, 3 B. & S. 769 ; 32 L. J. Q. B. 185 ; 9 
Jur. N. S. 1069 ; 11 W. E. 569 ; 8 L. T. 2(>1 ; 
" a hypocrite," 

Thoiiey v. Lord Kerry, 4 Tannt. 355 ; 3 Camp. 214 n. ; 
" a frozen snake," 

Hoare v. Silverlock (No. 1, 1848), 12 Q. B. 624 ; 17 L. J. Q. B. 
306 ; 12 Jur. 695 ; 
"a rogue and a rascal," 

Per Gould, J., in Villers v. Monsley, 2 Wils. 403 ; 
" a dishonest man," 

Per cur. in Austin v. Culpepper, Skin. 124 ; 2 Show. 314 ; 
" a mere man of straw," 

Eaton V. Johns, 1 Dowl. (N. S.) 602 ; 
" an itchy old toad," 

Villers v. Monsley, 2 Wils. 403 ; 
" a desperate adventurer," association with whom " would inevitaldy 
cover " gentlemen " with ridicule and disrepute,"' 

TFaJdey v. Healey, V C. B. 591 ; 18 L. J. C. P. 241 ; 
that " he grossly insulted two ladies," 

Clement v. Chivis, 9 B. & C. 172 ; 4 M. & E. 127 ; 
Lhat " he is unfit to be trusted with money," 

Cheese v. Scales, 10 M. & W. 488 ; 12 L. J. Ex. 13 ; 6 Jur. 958 ; 
that " lie is insolvent and cannot pay his debts," 

Metropolitan Omnibus Co. v. Hmrkins, 4 H. & N. 146 ; 28 L. J. 
Ex. 201 ; 5 Jur. N. S. 226 ; 7 W. E. 265 ; 32 L. T. (Old S.) 281 ; 
that " he was once in difficulties," though it is stated that such ditficulties 
are now at an end, 

Cox v. Lee, L. E. 4 Ex. 284 ; 38 L. J. Ex. 219 ; 



LIBEL. 23 

that he is "the most artfiil scoundrel that ever existed," "is in every 
IDerson's debt," and that "his ruin cannot be long delayed," and 
that "he is not deserving of the slightest commiseration," 

Rutherford v. Evans, 6 Bing. 451 ; 8 L. J. (Old S.) C. P. 86 ; 
that he is " at the head of a gang of swindlers," that he is " a common 
informer, and has been guilty of deceiving and defrauding divers 
persons with whom he had dealings," 

FAnmi v. Stuart, 1 T. E. 748 ; 2 Smith's L. C. 6th ed. 57 ; 
B. v. Saunders, Sir Thos. Raym. 201 ; 
that the j)laintiff sought admission to a club and was black-ljalled, and 
bolted the next morning without paying his debts, 

O'Brien v. Clement, 16 M. & W. 159 ; 16 L. J. Ex. 76 ; 4 
D. & L. 343. 
So it is libellous to write and publish of a landlord that he ^jut in a 
distress in order to help his insolvent tenant to defraud his creditors. 
Hairc v. TVilson, 9 B. & C. 643 ; 4 M. & R. 605. 
It is libellous for a defendant to write a letter charging his sister with 
having unnecessarily made him a party to a Chancery suit, and adding " it 
is a pleasure to her to put me to all the expense she can." 
•^~"^"' Fray v. Fray, 17 C. B. N. S. 603 ; 34 L. J. C. P. 45 ; 10 Jur. 
K S. 1153. 
It is libellous to write of a lady applying for relief from a charitable 
society, that her claims are unworthy, and that she spends all the money 
given her by the benevolent in printing circulars filled with al)use of the 
society's secretarJ^ 

Huare v. Siloerlock (No. 1, 1848), 12 Q. B. 624 ; 17 L. J. Q. B. 
306 ; 12 Jur. 695. 
To state in writing that the plaintiff is insane, or that her mind is affected 
is libellous, if false. 

Morgan v. Lingen, 8 L. T. 800. 
Ironical praise may be a libel ; e.g., calling an attorney " an honest la^^7•er." 
Boydell v, Jones, 4 M. & W. 446 ; 7 Dowl. 210 ; 1 H. & H. 408. 
B. V. Broivn, 11 Mod. 86 ; Holt, 425. 
Sir Baptist Hicks' Case, Hob. 215 ; Poph. 139. 
It is libellous to impute to a Presbyterian " gross intolerance " in not 
allowing his hearse to be used at the funeral of his Roman Catholic servant. 
Teacy v. McKenna, Ir. R. 4 C. L. 374. 
It is 2)rimd facie libellous to charge the plaintiff wit h ingra titude even 
though the facts on which the charge is based be stated, and they do not 
bear it out. 

Cox V. Lee, L. R. 4 Ex. 284 ; 38 L. J. Ex. 219. 
It is libellous to state in a newspaper of a young nobleman that he drove 
over a lady and killed her and yet attended a public ball that very evening 
(although this only amounts to a charge of unfeeling conduct). 
Churchill V. Hunt, 1 Chit. 480 ; 2 B. & A. 685. 
It is libellous to write and publish of a lady of high rank that she has 
lier photograpli taken incessantly, morning, noon, and night, and receives a 
commission on the sale of such photographs. 

B. V. Boscnbenj, Times for Oct. 27th, 28th, 1879. 



24 DEFAMATORY WORDS. 

It is a libel to impute or imply that a grand jury have found a true bill 
against the plaintiff for any crime. 

Harvey v. French, 1 Cr. & M. 11. 
It is libellous to publish a highly coloured account of judicial proceed- 
ings, mixed with the reporter's o^yn observations and conclusions upon 
what passed in Court, containing an insinuation that the plaintiff had com- 
mitted perjury. 

Stiles V. Nokes, 7 East, 493 ; same case sub nomine Carr v. Jones, 

3 Smith, 491. 

It is libellous to write and publish of the editor of a paper that he is 

" a convicted felon " and " a felon editor ; " even although the fact is that 

he was convicted of felony, and iinderwent a term of inaprisonment with 

hard laboui'. 

Leyman v. Latimer and others, 3 Ex. D. 15, 352 ; 46 L. J. Ex. 
765 ; 47 L. J. Ex. 470 ; 25 W. R. 751 ; 26 W. E. 305 ; 37 
L. T. 360, 819. 
It is libellous to write about the plaintift''s " defalcations." 

Bruton v. Doiones, 1 F. & F. 668. 
It is libellous to write and publish of a man that a certain notorious 
jirostitute is " under his patronage or protection." 

More V. Bennett (1872), 48 N. Y. R. (3 Sickel), 472. 
Or of a married man that his conduct towards his wife is so cruel that 
she was compelled to summon him l^efore the magistrates. 

Uahm-rll v. Lujram, 2 C. L. Rep. (1854), p. 1397. 
It is libellous " to paint a man playing at cudgels with his wife." 
Per Lord Holt, C. J., in Anon. 11 Mod. 99. 
See Du Bost v. Beresford, 2 Camp. 511. 
It is a libel on a married lady to assert that her husband is petitioning 
for a divorce from her. 

R V. Rosenberg ) ^.^^^^ ^^^ ^^^^ ^ ^ ^^^^ 

R. V. Head & Marks, ) ' ' 

It is lil)ellous to call a manufacturer a " truckmaster," for this implies 
that he has been guilty of practices in contravention of the Truck Act. 

Homer v. Taunton, 5 H. & N. 661 ; 29 L. J. Ex. 318 ; 8 W. R. 
499 ; 2 L. T. 512. 
It is libellous to charge in writing a man with having cheated at dice or 
on the turf, although all gambling and horse-racing transactions are illegal 
or at least void. 

Ch-eviUe v. Chapman, 5 Q. B. 731 ; 13 L. J. Q. B. 172 ; 8 Jur. 

189 ; D. & M. 553. 
Yrisarri v. Clement, 3 Bing. 432 ; 11 Moore, 308 ; 2 C. & P. 223. 
It is libellous to call a man a " black-leg " or a " black-sheep." But there 
should be an averment that these words mean a person guilty of haliitually 
cheating and defrauding others. 

McGregor v. Gregory, 11 M. & W. 287^ 12 L. J. Ex. 204; 2 

D. N. S. 769. 
O'Brien v. Clement, 16 M. & W. 166 ; 16 L. J. Ex. 77. 
And see Barnett v. Allen, 1 F. & F. 125 ; 27 L. J. Ex. 412 ; 4 
Jur. N. S. 488 ; 3 H. & N. 376. 



LIBEL. 25 

It is libellous to write and publisli of the plaintiff the following words : 
" Digby has had a tolerable run of luck. He keeps a well-spread side- 
board, but I always consider myself in a family hotel when my legs are 
under his table, for the bill is sure to come in sooner or later, though I 
rarely dabble in the mysteries of ecarte or any other game. The fellow is 
as deep as Crockford, and as knowing as the Marquis. I do dislike this 
leg-al profession." 

I)i(jhj V. Thomi^on and another, 4 B. & Ad. 821 ; 1 N. & M. 485. 
It is libellous to write and publish of a clergyman that he poisoned foxes 
on the estate of Sir M. S., in a fox-hunting count)^, and had been hung up 
in eifigy in consequence of such " dastardly behaviour." 
R. V. Coo2oer, 8 Q. B. 533 ; 15 L. J. Q. B. 206. 
Foukier v. Nevxomh, L. E. 2 Ex. 327 ; 36 L. J. Ex. 169 ; 15 
W". E. 1181 ; 16 L. T. 595. 
It is libellous to publish in a newspaper a story of the plaintiff calculated to 
make him ludicrou s, tliough he had previously told the same story of himself. 
■ Uoofy. Ward, 6 Bing. 409 ; 4 IL & P. 99. 

But it is not defamatory to write of another that he is " Man Friday." 
Forbes v. King, 1 Dowl. 672 ; 2 L. J. Ex. 109. 
Foj', as Lord Denman, C. J., observes in Hoare\. Silverloch (No. 1, 1848), 12 
Q. B. 626 ; 17 L. J. Q. B. 308 : " That imputed no crime at all. The ' Man 
Fridaj",' we all know, was a very respectable man, although a black man, 
and black men have not been denoimced as criminals yet." The law is 
otherwise in the United States. 

King V. TFood, 1 N. & M. (South Car.) 184. 
Where the defendants posted up in a public club-room the following 
notice : " The Eev. J. Eobinson and Mr. J. K., inhabitants of this town, not 
being persons that the proprietors and annual suT)scribers think it proper 
to associate with, are excluded this room ; " this was held no libel. 
Robinson v. Jermyn, 1 Price, 11. 
It is not libellous to publish in a newspaper that the plaintifl' has sued 
his mother-in-law in the County Court. 

Cox V. Cooi)er, 12 W. E. 75 ; 9 L. T. 329. 
The following words are no lil)el (in their obvious and natural meaning 
at all events) : — " Society of Guardians for the Protection of Trade against 
Swindlers and Sharpers. I am directed to inform you that the persons using 
the firm of Goldstein & Co. are rejwrted to this Society as improper to be 
proposed to be balloted for as members thereof." The judgment would 
have been otherwise, had there been an averment that it was the custom of 
the society to designate swindlers and sharpers by the term " improper 
persons to be members of this society." 

Goldstein v. Foss, 6 B. & C. 154 (in Ex. Ch.) 4 Bing. 489 ; 2 C. & 
P. 252 ; 2 Y. & J. 146 ; 1 M. & P. 402. 
It is not a libel to write and publish in the Times: — " We are requested 
to state that the honorary secretary of the Tichbnrne Defence Fund is not 
and never was a captain in the Eoyal Artillery as ho has been erroneously 
described," for these words do not impute that the plaintiff had so repre- 
sented himself. 

Hunt V. GoodMe, 43 L. J. C. P. 54 ; 29 L. T. 472. 



26 DEFAMATORY WORDS. 

It is not defamatory to write and publish of the plaintiff words implying 
that he endeavoured to suppress dissension and discourage sedition in 
Ireland ; for, though such words might injure him in the minds of 
criminals and rebels, they would not tend to lower him in the estimation 
of right-thinldng men. 

ilfrtictf v. Vujoit, Ir. E. 4 C. L. 54. 

And see Ckoj v. UoherU, 9 Jur. N. S. 580; 11 W. E. 649 ; 8 

L. T. 397. 

So a notice sent by a landlord to liis tenants : — " Messrs Henty & Sons 

hereby give notice that they will not receive in payment any cheques 

drawn on any of the branches of the Capital and Counties Bank," is 

not defamatory. 

Cuiyital & Counties Bank v. Henty <h Sons, 28 W. K. 490 ; 42 L. T. 
314 ; (C. A.) 5 C. P. D. 514 ; 49 L. J. C. P. 830 ; 28 W. E. 851. 
The plaintiff was a certificated art master, and had been master at the 
Walsall Science and Art Institute. His engagement there ceased in June, 
1874, and he then started, and became master of, another school which was 
called " The Walsall Government School of Art," and was opened in August. 
In September the following advertisement appeared in the Walsall Observer, 
signed by the defendants as chairman, treasurer, and secretary of the 
Institute respectively : — " Walsall Science and Art Institute. The public 
are informed that Mr. Mulligan's connection with the institute has ceased, 
and that he is not authorised to receive subscriptions on its behalf." 
Held that this was no libel ; and that no innuendo could make it so : for 
the words were not capable of a defamatory meaning. 

Mulligan v. Cole and others, L. E. 10 Q. B. 549 ; 44 L. J. Q. B. 
153 ; 33 L. T. 12. 

If the words are not reasonably susceptible of any 
defamatory meaning, the Conrt will hold the statement 
of claim bad on demurrer ; or if there be no demurrer, 
the judge at the trial will stop the case. But if the words 
are reasonably susceptible of two constructions, the one 
an innocent, the other a libellous construction, then it is 
a question for the jury Avhich construction is the proper 
one ; and in such a case if the defendant demurs, his 
demurrer will be overruled (Jenner and another \. 
A' Beckett, L. E. 7 Q. B. 11 ; 41 L. J. Q. B. 14 ; 20 W. E. 
181 ; 25 L. T. 464); if the judge at the trial nonsuits, 
the Com't will order a new trial. [Hart and another \. 
Watl, 2 C. P. D. 146 ; 46 L. J. C. P. 227 ; 25 W. E. 373.) 

The jiu-y should always read the alleged libel thi-ough 
before deciding that its tendency is injurious. A word 



LIBEL. 27 

at the end may niter the whole meaning. (See Ihint v. 
Algar, 6 C. &"P. 245, ;905f, p. 100.) So if in one part 
appears something to the plaintiff's discredit, in another 
something to his credit, " the bane " and '' the antidote " 
shonld be taken together. The jnry shonld not dwell on 
isolated passages, but judge of the publication as a whole. 
(Fcr Lord Elleuborough, C. J., in R. v. Lcmibert ^ Perry ^ 
2 Camp. 398 ; 31 How. St. Tr. 340 ; per Lord Kenyon, 
C. J., in R. V. Reeves, Peake Add. Cas. 84 ; per Fitz- 
gerald, J"., in R. V. Stdlitwi, 11 Cox C. C. 58.) 

Illustration. 

The report of a trial for libel contained some strong observations against 
the plaintiif, which were indeed a necessary part of the report, as the defen- 
dant had justified. At the end it was stated that the jury found a verdict 
for the plaintiff for ^30. Held that the publication taken as a whole was 
not injurious to the plaintiff. 

Chalmers v. Payne, 2 C. M. & R. 156; 5 Tyrw. 766 ; 1 Gale, 69. 

It is libellous to impute to any one holding an office 
that he has been guilty of improper conduct in that office 
or has been actuated by wicked, corrupt, or selfish motives, 
or is incompetent for the post. So it is libellous to impute 
to a member of any of the learned professions that he 
does not possess the technical knowledge necessary for 
the proper practice of such profession, or that he has 
been guilty of professional misconduct. And it is not 
necessary (as it is in cases of slander, post, p. G9) that 
the person libelled should at the time still hold that office 
or exercise that profession: it is actionable to impute 
past misconduct when in office. {Parmiter v. Couplcmd, 
G M. & W. 108 ; Boudcll v. ^ Jones, 4 M. & W. 446 ; 
Warman v. Iline, 1 Jur. 820 ; Goodhurne v. Boivman, 
9 Bing. 532.) 

In cases of sLaiuler there is a curious distinction drawn be- 
tween offices of profit merely and offices of honour, such as that 



28 DEFAMATORY WORDS. 

of justice of the peace ; and it has been held that merely to 
impute incompetency or want of ability (as distinct from a want 
of integrity or impartiality) to a justice of the peace is not 
actionable, see p. 70. There is no authority, however, for sup- 
posing that an action of libel would not lie, if such words were 
printed and published. 

Illustrations. 

It is libellous to write and publish, of a Protestant archbishop that he 
attempted to convert a Catholic priest by offers of money and of preferment 
in the Church of England and Ireland. 

Arclibislioj) of Tuam v. Robeson and another, 5 Bing. 17 ; 2 M. & 

P. 32. 

It is libellous to write and publish of an ex-mayor and a justice of the 

peace tliat during his mayoralty he was guilty of partiality and corruption 

and displayed ignorance of his duties ; and this notwithstanding the public 

nature of the offices he held. 

Parmiter v. Coupland, 6 U. & W. 105 ; 9 L. J. Ex. 202 ; 4 Jur. 

701. 
Goodburne v. Boumian, 9 Bing. 532. 
It is libellous to write and publish of a clergyman that he came to the 
performance of divine service in a towering passion, and that his conduct is 
calculated to make infidels of his congregation. 
JFalter v. Brorjden, 19 C. B. N. S. 65. 
Gathercole v. Miall, 15 M. & W. 319 ; 10 Jur. 337 ; 15 L. J. Ex. 

179. 
But see Kelly v. Tinling, L. E. 1 Q. B. 699 ; 35 L. J. Q. B. 231 ; 
12 Jur. N. S. 940 ; 14 W. E. 51 ; 13 L. T. 255. 
It is libellous to write and publish of a dissenting minister : — " A serious 
misunderstanding has recently taken place amongst the independent dis- 
senters of Great Marlow and their pastor, in consequence of some personal 
invectives publicly thrown from the pulpit by the latter against a young 
lady of distinguished merit and spotless reputation. We understand, how- 
ever, that the matter is to be taken up seriously." — Bucks Chronide. 
Edivards v. Bell and others, 1 Bing. 403. 
As to a Eoman Catholic priest, see 

Heurne v. Stoivell, 12 A. & E. 719 ; 4 P. & D. 696 ; 6 Jur. 458. 
A body of trustees of a certain charity can sue jointly for a libellous letter 
published in the Wisbeach Chronicle impiiting to them improper manage- 
ment of the charity funds. 

Booth V. Briscoe (C. A.), 2 Q. B. D. 496 ; 25 W. E. 838. 

Parish Officers, dr. 

It is libellous to charge an overseer of a parish with " oppressive con- 
d uct " towards the paupers. 

JFoodard v. JJovmng, 2 M. & Ey. 74. 



LIBELS ON PROFESSIONAL MEN. 29 

A placard stating of a certain overseer that when out of office he advo- 
cated low rates, when in office he advocated high rates, and that the defen- 
dant would not trust him with £h of his property, is a libel. 
Cheese v. Bmles, 10 M. & W. 488. 
It is libellous to accuse a vestry clerk with having in any ^vay misapplied 
the money of the parish. 

May V. Brown, 3 B. & C. 113. 
It is libellous to charge a guardian of the poor with having been during 
the preceding year " a great defaulter " in his account. 
JVarman v. Hine, 1 Jur. 820. 
It is libellous to charge the clerk to the justices of a borough with 
corruption. 

Blagg v. Sftirf., 10 Q. B. 899 ; 16 L. J. Q. B. 39 ; 11 Jur. 101. 
It is libellous to impute habitual drunkenness and neglect of his duties 
to a certificated master mariner. 

Coxhead v. Richards, 2 C. B. 569 ; 15 L. J. C. P. 278 ; 10 Jur. 984. 
Harwood v. Green, 2 C. & P. 141. 

Inoin V. Brandimod, 2 H. & C. 960 ; 33 L. J. Ex. 257 ; 9 L. T. 
772 ; 10 Jur. N. S. 370; 12 W. E. 438. 

Medical Men. 

To advertise falsely that certain quack medicines were prepared by a 
physician of eminence is a libel upon such physician. 

Clark V. Freeman, 11 Beav. 112 ; 17 L. J. Ch. 142 ; 12 Jur. 149. 
But it is no libel to write and publish of a physician that he has met 
homoeopathists in consultation ; although it be averred in the declaration 
that to do so would be a breach of professional etiquette. 

Clay V. Roberts, 9 Jur. (N, S.) 580; 11 W. R. 649 ; 8 L. T. 397. 

Barristers. 

To write and publish falsely of a barrister that he edited the third edition 
of a law-book is actionable, if the book is proved to be full of inaccuracies 
which would seriously prejudice the plaintiff's reputation. 

Archbold V. Stved, 1 Moo. & Rob. 162 ; 5 C. & P. 219. 
To write and publish of a barrister that he is " a quack lawyer and a 
mountebank " and " an impostor" is actionable. 

TFahle7j v. Healey, 7 C. B. 591 ; 18 L. J. C. P. 241. 

Solicitors and Attorneys. 

It is libellous to compare the conduct of an attorney in a particular case 
to that of the celebrated firm of Quirk, Gammon & Snap in "Ten Thousand 
a Year." 

TFoodgate v. Ridout, 4 F. & F. 202. 
A correct report in the Observer of certain legal proceedings was headed 
" Shameful conduct of an attorney." Held that thu lieadiiig was a libel, 
even though all that followed was protected. 

Clement v. Lewis, 3 Br. & Bing. 2'.)7 ; 3 B. & Aid. 702 ; 7 
Moore, 200. 



30 DEFAMATORY WORDS. 

The libel complained of was headed—" How Lawyer B. treats his 
clients," followed by a report of a particular case in which one client of 
Lawj'er B.'s had been badly treated. That particular case was proved to be 
correctly reported, but this was held insufficient to justify the heading 
whicli implied that Lawyer B. genei-ally treated his clients badly. 
Bishop V. Latimer, 4 L. T. 775. 
Libel complained of, that the plaintiff, a proctor, had three times been 
suspended firom practice for extortion. Proof that he had once been so 
suspended was held insufficient. 

Clarkson v. Lawson, 6 Bing. 266, 587 ; 3 M. & P. 605 ; 4 M. & 

P. 356. 
BMe V. Stevens and others, 4 F. & F. 232 ; 11 L. T. 543. 
It is libellous to impute to a solicitor " disgraceful conduct " in having at 
an election disclosed confidential communications made to him profes- 
sionally. 

Moore v. Terrell and others, 4 B. & Ad. 870 ; 1 N. & M. 559. 

Journalists. 

It is libellous to impute to the editor and proprietor of a newspaper that 
in advocating the sacred cause of the dissemination of Christianity among 
the Chinese, he was an impostor, anxious only to put money into his own 
pocket by extending the circulation of his p)aper ; and that he had pub- 
lished a fictitious subscription list with a view to induce people to 
contribute. 

Camplell v. Spottisicoode, 3 B. & S. 769 ; 32 L. J. Q. B. 185 ; 
9 Jur. N. S. 10G9 ; 11 W. R. 569 ; 8 L. T. 201. 
It is libellous to call the editor of a newspaper " a libellous joiirnalist." 

JVakley v. Cooke S' Healaj, 4 Exch. 511 ; 19 L. J. Ex. 91. 
It is libellous to write and publish that a newspaper has a separate page 
devoted to the advertisements of usurers and quack doctors, and that the 
editor takes respectable advertisements at a cheaper rate if the advertisers 
will consent to their appearing in that page. 

Eussell and another v. Webster, 23 W. E. 59. 
It is not libellous for one nev.'spaper to call another " the most viilgar, 
ignorant and scurrilous journal ever published in Great Britain ;" but it is 
libellous to add " it is the lowest now in circulation ; and we submit the 
fact to the consideration of advertisers ; " for that aftects the sale of the 
paper and the profits to be made by advertising. — (Lord Kenj^on, C.J.) 
Heriot v. Stuart, 1 Esp. 437. 

Any "\\Titteii words are libellous wliicli impeacli tlie 
credit of any merchant or trader by imputing to liim 
bankruptcy, insolvency, or even embarrassment either 
past, present, or futiu'e, or which impute to him fraud 
or dishonesty or any mean and dishonom-able trickery 
in the conduct of his business, or whicli in any other 



I 



LIBELS ON TRADERS. 31 

method are prejudicial to him in the way of his employ- 
ment or trade. 

" The law has always been very .tender of the reputation of 
tradesmen, and therefore words spoken of them in the way of 
their trade will bear an action that will no<^ be actionable in the 
case of another person, and if bare words are so, it will be 
stronger in the case of a libel in a public newspaper which is so 
diifusive." Per curiam, in Haronan v. Delany, 2 Str. 898 ; 1 
Barnard. 289 ; Fitz. 121. 

Competition between rival traders is allowed to any extent, 
so long as only lawful means are resorted to. Pudsey Coal Gas 
Co. V. Corporation of Bradford, L. E.. 15 Eq. 167 ; 42 L. J. 
Ch. 293; 21 W. K. 286 ; 28 L. T. 11. But force and violence 
must not be used {Young v. Hickens, 6 Q. B. 606), nor threats 
{Tarleton and others v. McOaivley, Peake, 270), nor imputations 
of fraud or dishonesty. 

Illustrations. 

The printers of a newspaper, hj a mistake in setting up in type the 
announcements from the London Gazette, placed the name of the plaintiff's 
firm under the heading " First Meetings under the Bankruptcy Act " 
instead of under " Dissolutions of Partnership." An ample apology was 
inserted in the next issue : no damage was proved to have followed to the 
plaintiff : and there was no suggestion of any malice. In an action for 
libel against the proprietors of the paper, the jury awarded the plaintiff 
£50 damages. Held that the publication was libellous, and that the damages 
awarded were not excessive. 

Shepheard v. Whitaker, L. R. 10 C. P. 502 ; 32 L. T. 402. 
[X.B. — The chief clerk thought £10 sufficient in a very similar case, 
Htuhhs V. Marsh, 15 L. T. 312.] 

It is libellous to advertise that a certain optician is "a licensed liawker" 
and "a quack in spectacle secrets." 

Keijzor and another v. Newcomh, 1 F. & F. 559. 
It is a libel to write and publish of a licensed victualler that his licence 
has been refused ; as it suggests that he had committed some breach of the 
licensing laws. 

Bignell v. Buzzard, 3 H. & N. 217 ; 27 L. J. Ex. 355. 
It is libellous to write and publish of the defendant that he regularly 
supplies bad and uin\ liolesome water to ships, wliereby the passengers are 
made ill. 

Solomon v. Lairson, 8 Q. B. 823 ; 15 L. J. Q. B. 253 ; 10 Jur. 
796. 



32 DEFAMATORY WORDS. 

But for one tradesman merely to puff up his own goods, and decry those 
of his rival, is no libel ; unless fraud or dishonesty be imputed. 

Evans v. Harlmr, 5 Q. B. 624 ; 13 L. J. Q. B. 120 ; 8 Jur. 571 ; 

D. & M. 507. 
Heriot V. Stuart, 1 Esp. 437, ante, p. 30. 
Partners may sue jointly for a libel defamatory of the partnership. 
Le Fanu v. Malcolmson, 1 H. L. C. 637 ; 8 Ir. L. R. 418. 
Haythorn v. Lawson, 3 C. & P. 196. 

Ward V. Smith, 6 Bing. 749 ; 4 C. e^ P. 302 ; 4 :M. & P. 595. 
So a company or corporation can sue even one of their own members 
for a libel relating to their management of their business. 

Williams v. Beaumont, 10 Bing. 260 ; 3 Moore & Sc. 705. 
Eastwood V. Holmes, 1 F. & F. 347. 

Metropolitan Omnibus Co. v. Hawkins, 4 H. & N. 87 ; 28 L. J. 

Ex. 201 ; 5 Jur. N. S. 226 ; 7 W. R. 265 ; 32 L. T. (Old S.) 

281. 

A married woman trading under her own name according to the custom 

of London may sue as a trader, without joining her husband, for a libel ou 

her in the way of her trade. 

Per Brett, J., in Summers v. City Baal; L. R. 9 C. P. 583 ; 43 
L. J. C. P. 261. 



Sometimes also au attack upon a thing may be defama- 
tory of the o^yner of that thing, or of others immediately 
connected with it. But this is only so where an attack 
upon the thing is also an indii-ect attack upon the 
individual. If the words do not touch the personal 
character or professional conduct of the individual, they 
are not defamatory of Iwn, and no action lies (imless the 
words fall within the rules relating to Slander of Title ; 
see post, c. V.) But to impute that the goods which 
the defendant sells or manufactures are adulterated to 
his knowledge, is a distinct charge against the defendant 
of fraud and dishonesty in his trade. 

A declaration alleged that the plaintiffs were manufacturers of bags, and had 
manufactured a bag which they called the "Bag of Bags," and the defendant 
printed and published, concerning the plaintifts in their business, the words 
following : — " As we have not seen the Bag of Bags, we cannot say that it 
is useful, or that it is portable, or that it is elegant. All these it may be, 
but the only point we can deal with is the title, which we think very silly, 
very slangy, and very vulgar ; and which has been forced upon the notice 



LIBELS ON THINGS. 33 

of the public ad nauseam.'" On demurrer, Lush, J., held that the words 
could not be deemed libellous, either upon the plaintiffs or upon their mode 
of conducting their business. But ]\lellor and Haunen, JJ., thought that 
it was a question for the jury whether the words went beyond the limits 
of fair criticism, and whether or not they were intended to disparage the 
plaintiffs in the conduct of their business. 

Jenner and another v. A'Becketf, L. E. 7 Q. B. 11 ; 41 L. J. 
Q. B. 14 ; 20 W. R. 181 ; 25 L. T. 464. 
The defendant published an advertisement in these words : — " Whereas 
there was an account in the Craftsman of John Harman, gunsmith, making 
guns of two feet six inches to exceed any made by others of a foot longer 
(with whom it is supposed he is in fee), this is to advise all gentlemen to 
be cautious, the said gunsmith not daring to engage with any artist in toivn, 
nor ever did make such an experiment (except out of a leather gun), as any 
gentleman may be satisfied of at the Cross Guns in Longacre." Held a 
libel on the plaintiff in the way of his trade. Verdict for the Plaintiff'. 
Damages £50. 

Harman v. Delany, 2 Stra. 898 ; 1 Barnard. 289, 438 ; Fitz. 121. 
A declaration alleged that the plaintiff" carried on the trade of an engi- 
neer, and sold in the way of his trade goods called "self-acting tallow 
syphons or lubricators," and that the defendant published of the plaintiff in 
his said trade and as such inventor as follows : — " This is to caution parties 
employing steam power from a person, offering what he calls self-acting 
tallow syphons or lubricators, stating that he is the sole inventor, manufac- 
turer and patentee, thereby monopolizing high prices at the expense of the 
public. R. Harlow (the defendant) takes this opportunity of saying that 
such a patent does not exist, and that he has to offer an improved lubricator, 
which dispenses with the necessity of using more than one to a steam 
engine, thereby constituting a saving of 50 per cent, over every other kind 
yet offered to the public. Those who have already adopted the lubricators 
against which R. H, would caution, will find that the tallow is wasted 
instead of Ijeing effectually employed as professed." Held no libel on the 
plaintiff, either generally, or in the way of his trade, but only a libel on the 
lul>ricators, and therefore not actionable without proof of special damage. 

Evans v. Harlow, 5 Q. B. 624 ; 13 L. J. Q. B. 120 ; 8 Jur. 571 ; 

D. & M. 507. 

So where one tradesman merely asserts that his own goods are superior 
to those of some other tradesman, no action lies unless the words be pub- 
lished falsely and maliciously and special damage has ensued. 

Yomig ami others v. Macrae, 3 B. & S. 264 ; 32 L. J. Q. B. 6 ; 

11 W. R. 63 ; 9 Jur. N. S. 539 ; 7 L. T. 354. 
Western Counties Manure Co. v. Lawes Chemical Manure Co., L. 

E. 9 Ex. 218 ; 43 L. J. Ex. 171 ; 23 W. R. 5. 

A libel on the management of a newspaper is a libel on its proprietors, 
jointly, in the way of their trade, and therefore actionable without special 
damage. 

Russell and another v. IFehster, 23 W. R, 59. 



34 DEFAMATORY 'WORDS. 

To write and publish tliat a ship is unseaworthy may he a libel on its 
captain. " It is like saying of an innkeeper that his wine or his tea is 
poisoned." 

Ingram v. Lawson, 6 Bing. N. C. 212 ; 8 Sc. 471, 478 ; 4 Jur. 
151 ; 9 C. & P. 326. 
To advertise falsely that certain quack medicines were prepared by an 
eminent physician, is a libel upon such physician. 

C'larh V. Freeman, 11 Beav. 112; 17 L.J. Ch. 142; 12 Jur. 
149. 
It is libellous falsely to impute to a bookseller that he publishes 
immoral or absiu'd poems. 

Tahart v. TipiKr, 1 Camp. 350. 
It is libellous falsely to write and publish of professional vocalists that 
they had advertised themselves to sing at certain music-halls songs which 
they had no right to sing in public. 

Hart and another v. JFall, 2 C. P. D. 146 ; 46 L. J. C. P. 227 ; 

25 W. R 373. 

But comments, however severe, on the advertisements or handbills of a 

tradesman, will not be libellous, if the jury find that they are fair and 

temperate comments not wholly undeserved on a matter to which public 

attention was expressly invited by the plaintiff. 

Paris V. Levy, 9 C. B. N. S. 342 ; 30 L. J. C. P. 11 ; 9 W. R. 

71; 3L. T. 324; 2 F. & F. 71. 
Morrison and another v. Harraer and another, 3 Bing. N. C. 759 ; 
4 Scott, 524 ; 3 Hodges, 108. 

Fair and bond Jide Comment. 

Every one has a right to comment ou matters of public 
interest and general concern, provided he does so faii'ly 
and with an honest purpose. Such comments are not 
libellous, however severe in theii- terms, unless they are 
written inteniperately and malicious^. Every citizen 
has full freedom of speech on such subjects, but he must 
not abuse it. 

This branch of the law is of but recent growth. Cockburu, 
C. J., says in Wason v. Walter, L. R. 4 Q. B. 93, 94 :— 

" Our law of libel has, in many respects, only gradually de- 
veloped itself into anything like a satisfactory and settled form. 
The full liberty of public writers to comment on the conduct 
and motives of public men has only in very recent times been 
recognised. Comments on government, on ministers and officers 



FAIR COMMENT. 35 

of state, on members of both Houses of Parliament, on juilges 
and other public functionaries, are now made every day, which 
half a century ago would have been the subject of actions or 
ex officio informations, and would have brought down fine and 
imprisonment on publishers and authors. Yet who can doubt 
that the public are gainers by the change, and that, though in- 
justice may often be done, and though public men may often 
have to smart under the keen sense of wrong inflicted by 
hostile criticism, the nation profits by public opinion being thus 
freely brought to bear on the discharge of public duties? " 

The right to comment upon the ^^nblic acts of public 
men is the right of every citizen, and is not the peculiar 
privilege of the press. [Kane v. Mulvany^ Ir. E. 2 
C. L. 402.) But ncAVspaper ^vi'iters, though in strict 
law they stand in no better position than any other 
person, are generally allowed greater latitude by jmies. 
For it is in some measure the duty of the press to watch 
narrowly the conduct of all government officials, and the 
working of all public institutions, to comment freely on 
all matters of general concern to tlie nation, and to 
fearlessly expose abuses. 

It has often been said in nisi "priiis cases, that fair and 
honest criticism in matters of public concern is '' 'privileged^ 
But this does not mean that such words are " privileged by 
reason of the occasion " in the strict legal sense of that term. 
Tlie defence_ really is^J^liat the words are jipt defamatory ; that 
criticism is no libel. This is very clearly pointed out by Black- 
burn, J., in G(imi)hdl v. Spottisvjoode, 3 B. & S. 7G9 ; 82 L. J. 
Q. B. 185 ; 9 Jur. N. S. 1009 ; 11 W. R. 5G0 ; S L. T. 201. 

If such criticism was privileged in the strict sense of the 
word, it would in every case be necessary for the plaintiff to 
prove actual malice, however false and however injurious the 
istrictures may have been ; while the defendant would only have 
'to prove that ho honestly believed the charges himself in order to 
escape all liability ; and this clearly is not the law. Comment 
and criticism on matters of public interest stand on a different 



36 DEFAMATORY WORDS. 

footing from reports of judicial or Parliamentary proceedings. 
Such reports are privileged, so long as they are fair and ac- 
curate reports and nothing more. But so soon as there is any 
attempt at comment, the privilege is lost. In short, report and 
comment are two distinct and separate things. Fair reports 
are privileged, while fair comments on matters of public interest 
are no libels at all. 

Illustrations. 

Condemnation of the foreign policy of the Government, however sweejjing, 
is no libel. 

Animadversions, however severe, on the use made by the vestry of the 
money of the ratepayers, is not libellous, unless corruption or embezzle- 
ment be imputed to individual vestrymen. 

Criticism, however trenchant, on any new poem or novel, or on any 
picture exhibited in a public gallery, is no libel. 

But to maliciously pry into the private life of any poet, novelist, artist, 
or statesman, is indefensible. 

Criticism. 

Every one of the public is entitled to j)ass an opinion 
on everything which in any way invites public attention. 
Those of the piublic whose opinion on such matters is best 
worth having are called critics. From their education^ 
ability, or experience, they can judge with precision 
(which is the true meaning of the word to criticize), and 
their opinion, therefore, is entitled to respect. Their 
criticism may be commendatory, but it is, perhaps, more 
generally unfavourable. Still, so long as it continues to 
be criticism at all, it is not defamatory. Where defama- 
tion commences, true criticism ends. 

True criticism differs from defamation in the following 
particulars : — 

1. Criticism deals only with such things as invite 
public attention, or call for public comment. 

2. Criticism never attacks the individual, but only his 
work. Such work may be either the policy of a govern- 
ment, the action of a member of Parliament, a public 



CRITICISM. 37 

entertainment, a book published, or a picture exhibited. 
In every case the attack is on a man's acts^ or on some 
tiling.^ and not upon the man himself. A true critic 
never indulges in personalities. 

3. True criticism never imputes or insinuates dis- 
honourable motives (unless justice absolutely requii'es it, 
and then only on the clearest proofs). 

4. The critic never takes advantage of the occasion to 
gratify private malice, or to attain any other object 
beyond the fail* discussion of matters of public interest, 
and the judicious guidance of the public taste. 

Every one has a right to publish such fair and candid 
criticism, even " although the author may suffer loss from 
it. Such a loss the law does not consider as an injury, 
because it is a loss which the party ought to sustain. 
It is, in short, the loss of fame and profits to which he 
was never entitled." * * * '' Eeflection upon 
personal character is another thing. Sbow me an 
attack upon the moral character of the plaintiff, 
or any attack upon his character unconnected with 
his authorship, and I should bo as ready as any 
judge who ever sat here to protect him. But I cannot 
hear of malice on account of turning his works into 
ridicule." {Per Lord Ellenborough in the celebrated 
case of Sir John Carr v. Hood., 1 Camp. 355, n.) So in 
Tahart v. Tipper, 1 Camp. 351, the same learned Judge 
says : " Liberty of criticism must be allowed, or we 
should neither have j^urity of taste nor of morals. Fair 
discussion is essentially necessary to the truth of history 
and the advancement of science. That publication, 
therefore, I shall never consider as a libel, which has for 
its object, not to injure the reputation of any individual, 
but to correct misrej)resentations of fact, to refute sophis- 
tical reasoning, to expose a vicious taste in literatm-e, or 
to censure what is hostile to morality." " God forbid," 



38 DEFAMATORY WORDS. 

exclaims Aklcrsou, B. in Gather cole y. 3IiaU, 15 M. & 
W. 340, " God forbid tliat you should not be allowed to 
comment on the acts of all mankind, provided yon do it 
jnstlj^ and truly." " A critic must confine himself to 
criticism, ancTnbt make it the veil for personal censure, 
nor alloAY himself to run into reckless and unfaii" attacks 
merely from the love of exercising his power of denuncia- 
tion." (P^T Huddleston, B., in W/u'stlerY. Bus/cin ; Times 
for XoY. 27th, 1878.) 

But all comments must be fair and honest. Matters 
of public interest must be discussed"iemperately. Wicked 
and corrupt motives should never be wantonly assigned. 
And it will be no defence that the writer, at the time he 
wrote, honestly believed in the truth of the charges he 
was making, if such charges be made recklessly, un- 
reasonably, and without any foundation in fact. ( Camp- 
bell V. Spottistvoode, 3 F. & F. 421 ; 3 B. & S. 769 ; 
32 L. J. Q. B. 185 ; 11 ^Y. R. 569 ; 9 Jur. X. S. 1069 ; 
8 L. T. 201.) Some people are very credulous, especially 
in politics ; and can readily believe any evil of their 
opponents. There must therefore be some foundation in 
fact for the charges made ; the ^^Titer must bring to his 
task some degree of moderation and judgment. 

Slight unintentional errors, on the other hand, ^\'ill be 
excused. If a writer in the course of temperate and 
legitimate criticism falls into error as to some detail, or 
di'aws an incorrect reference from the facts before him, 
and thus goes beyond the limits of strict truth, such 
inacciu*acies will not cause judgment to go against 
him, if the jury are satisfied, after reading the whole 
publication, that it was written honestly, fairly, and 
with regard to what truth and justice require. " It 
is not to be expected that a public joiu'ualist will 
alwavs be infallible." (Per Cockburn, C. J., 2 F. & 
F. 210.) 



BONA FIDE COMMENTS. 39 

But the critic must confine himself to the merits of 
the work before him. He must not follow the plaintiff 
into his domestic life, or attack his private character. 
He must carefully examine the production before him, 
and then honestly state his true opinion of it. 

So long as a writer confines himself to comments on 
the public conduct of public men, the mere fact that 
motives have been unjustly assigned for such conduct is 
not of itself safhcient to destroy this defence, though of 
course it will tell strongly in favour of the plaintiff. 
" A line must be drawn," says Cockbm-n, C.J., in CamjJ- 
hellY. Spottistvoode, 3 B. & S. 776, 7 ; 32 L. J. Q. B. 199 ; 
8 L. T. 201, "between criticism upon public conduct 
and the imputation of motives by which that conduct 
may be supposed to be actuated ; one man has no right 
to impute to another, whose conduct may be faii-ly open 
to ridicule or disapprobation, base, sordid, and wicked j 
motives, unless there is so much ground for the imputa- ' 
tion that a jury shall find, not only that he had an 
honest belief in the truth of his statements, but that his 
belief was not without foundation . . . ." "I think 
the fair position in which the law may be settled is this : 
That where the public conduct of a public man is open 
to animadversion, and the writer who is commenting 
upon it makes imputations on his motives, which arise 
fairly and legitimately out of his conduct, so that a jury 
shall say that the criticism was not only honest but also 
well founded, an action is not maintainable. But it is 
not because a public writer fancies that the conduct of a 
public man is open to the suspicion of dishonesty, he is 
therefore justified in assailing his character as dishonest." 

Illustrations. 

An article in the Saturday Bevieio imputed to tlie plaintiff, the editor and 
part proprietor of the British Ensign, that in advocating the propagation of 



40 DEFAMATORY WORDS. 

Cliri.stianity among the Chinese liis piupose was merely to increase the 
circuhition of his own paper, and so put money into his own pocket ; that 
he was an imj^ostor, and that he put forth a list of fictitious subscribers in 
order to delude others into subscribing. The jury found that the ^vl■iter 
honestly believed the imputations contained in the article to be well- 
founded, but the Court held that the limits of fair criticism had been 
undoubtedly exceeded. 

Camphell v. Spottisu-oode, 3 F. & F. 421 ; 32 L. J. Q. B. 185 ; 
3 B. & S. 769 ; 9 Jur. N. S. 1069 ; 11 W. R. 569 ; 8 L. T. 
201. 
Two sureties were proposed for the Ber\\-iLk election petition : neither of 
whom had any connection with the borough. Affidavits were put in to 
show that one of them was an insufficient surety, being embarrassed in his 
affixirs. Tlie Times set out tliese affida\-its and added the remarks, " But 
why, it may be asked, does this cockney tailor take all tMs trouble, and 
subject himself to all this exposure of his difficulties and embarrassments ? 
He has nothing to do wdth the borough of Berwick-iTpon-Tweed or its 
members. How comes it then that he should take so much interest in the 
job? There can be but one answer to these very natural and reasonable 
(jueries : he is hired for the occasion. The affair in fact is a foul job through- 
out, and it is only hy such aid that it can possibly be supported." In an 
action Ijrought on tlie whole article, the defendant pleaded that the publi- 
cation was a correct report of certain legal proceedings, " together with a 
fair and bond fide commentary thereon." But the jiuy thoxight the comment 
was not fair and gave the plaintiff damages ,£100. 

Cooper V. Lauson, 8 A. & E. 746 ; 1 P. & D. 15 ; 1 W. W. & H. 
601 ; 2 Jur. 919. 
The jilaintiff was ex-mayor of Winchester. The Hampshire Advertiser 
imputed to him partiality and corruption and ignorance of his duties as 
mayor and justice of the j)eace for the borough. Held that though some 
words which are clearly libellous of a private person may not amount to a 
libel when spoken of a jierson holding a pulilic capacity, still any imputa- 
tion of unjust or corrupt motives is equally libellous in either case. 

Parmiter v. Coupland, 6 M. & \y. 105 ; 9 L. J. Ex. 202 ; 4 Jur. 

701. 

But when an attack is made on the policy of Her IVIajesty's Government 

or on the public conduct of any high officer of State, it ajipears now that 

wicked or at least selfish, motives may l)e im25uted, so long as they are 

not recklessly and maliciously imputed. 

Per Martin, B., in Hark v. Catherall, 14 L. T. 801. 
Per Cockbiu-n, C.J., in Wason v. JFalter, L. R. 4 Q. B. 93 ; 38 
L. J. Q. B. 34 ; 17 W. R. 169 ; 19 L. T. 416 ; 8 B. & S. 
730. 
And in Cauiphell v. Spjottisicoode, ante, p. 39. 
The defendants, tlie jmnters and publishers of tlie Mancliester Courier, 
published in their pa]ier a report of the proceedings at a meeting of the 
board of guardians for the Altrincham Poor-Law Union, at which charges 
were made against the medical officer of the union workhouse at Knutsford, 



MATTERS OF PUBLIC INTEREST. 41 

of neglecting to attend the pauper patients when sent for. Such charges 
proved to be utterly unfounded ; they were made in the absence of the 
medical officer, without any notice having been given him. Kdd that the 
matter was one of public interest ; but that the report was not privileged 
by the occasion, although it was admitted to be a correct account of what 
passed at the meeting ; that it was obviously unfair to the plaintiff that 
such ex iparte statements should be published in the local papers ; that the 
editor should therefore have exercised his discretion and excluded the 
report altogether ; and the plaintiff recovered 40s. damages and costs. 

. ^Furcell v. Sowler (C.A,), 2 C. P. D. 215 ; 46 L. J. C. P. 308 ; 
25 W. E. 362 ; 36 L. T. 416. 

What are matters of public interest ? 

The public conduct of every public man is a matter of 
public concern : — 

"A clergyman with his flockj^ an admiral with his 
fleet, a^ ' geneiNal with ms arni}^, and a judge with his 
jury, are all subjects of public discussion. Whoever 
fills a public position renders himself open thereto. He 
must accei)t an attack as a necessary, though impleasant, 
appendage to his office." {Per Bramwell, B., in Kelly v. 
SherlocJc, L. E. 1 Q. B. 689 ; 35 L. J. Q. B. 209 ; 12 Jur. 
K S. 937.) 

All political, legal, and ecclesiastical matters therefore 
are matters of public concern. So is the conduct of 
every vestry, town coimcil, board of guardians, &c. 
For, although these may be matters of local interest 
principally, still this rule applies, so long as they are not 
private matters. Anything that is a pubKc concern to 
the inhabitants of Birmingham or Manchester is a matter 
of public interest within the meaning of the rule. See 
the remarks of Cockbui*n, C.J., in Cox v. FeeneyyiY. & F. 
13. And again in Purcell v. Sowler, 2 C. P. D. 218, 
the same learned judge says : "But it seems to me that 
whatever is matter of public concern when administered 
in one of the government departments, is matter of 
public concern when administered by the subordinate 
authorities of a particular district. It is one of the 



42 DEFAMATORY WORDS. 

characteristic featm-es of the government of this conntry 
that, instead of being centralized, many important 
branches of it are committed . to the conduct of local 
authorities. Thus the business of counties, and that of 
cities and boroughs, is, to a great extent, conducted by 
local and municij)al goYcrnment. It is not, therefore, 
because the matter under consideration is one which in 
its immediate consequences affects only a pai-ticular 
neighbourhood that it is not a matter of public concern. 
The management of the poor and the administration of 
the poor-law in each local district are matters of public 
interest. In this management the medical attendance 
on the poor is matter of infinite moment, and conse- 
quently the conduct of a medical officer of the district 
may be of the greatest importance in that particular 
district, and so may concern the iDublic in general." 

Matters of public interest may be conveniently 
grouped under the following heads : — 

1. Affairs of state; 

2. The administration of justice; 

3. Public institutions and local authorities ; 

4. Ecclesiastical matters ; 

5. Books, pictui'es, and architecture ; 

G. Theatres, concerts, and other public entertainments; 
7. Other appeals to the public. 

I. Affairs of State. 

The conduct of all public servants, the policy of the 
Government, our relations with foreign countries, all 
suggestions of reforms in the existing laws, all bills 
before Parliament, the adjustment and collection of 
taxes, and all other matters which touch the public 
welfare, are clearly matters of public interest, which 
come within the preceding rule. "Every subject has a 



COMMENTS ON STATE AFFAIRS. 43 

right to comment on those acts of public men Avhich 
concern him as a subject of the reahn, if he do not make 
his commentary a cloak for malice and slander." {Fev 
Parke, B., in Parmiter v. Coupland^ 6 M. & W. 108.) 
Those who fill "a public position must not be too thin- 
skinned in reference to comments made upon them. It 
would often happen that observations would be made 
upon public men which they knew from the bottom of 
their hearts were undeserved and unjust ; yet they must 
bear with them, and submit to be misunderstood for a 
time, because all knew that the criticism of the press was 
the best secmity for the proper discharge of public 
duties." {Fer Cockburn, C.J., in Seymour v. Biitter- 
ivortJi^ 3 F. & F. 376, 7 ; and see the dicta of the judges 
in R. V. Sir R. Garden, 5 Q. B. D. 1 ; 49 L. J.^M. C.) 1 ; 
28 W. E. 133; 41 L. T. 504.) 

Ilhisivcdions. 

The presentation of a petition to Parliament impugning the character of 
one of Her Majesty's judges, and praying for art inquiiy, and for his re- 
moval from office should the charge prove true, is a matter of high public 
concern, on which all newspapers may comment, and in severe terms. So 
is the debate in the House on tlie subject of such petition. 

Wason V. Walter, L. E. 4 Q. B. 73 ; 38 L. J. Q. B. 34 ; 17 

W. R. 169 ; 19 L. T. 409 ; 8 B. & S. 730. 

A writer in a neA\spaper may comment on the fact that corrupt practices 

extensively prevailed at a parliamentary election ; but may not give the 

names of individuals as guilty of bribery, unless he can prove the truth of 

the charge to the letter. 

Wilson V. Eml and others, 2 F. & F. 149. 
The presentation of a petition to Parliament against quack doctors is 
matter for public comment. 

Dunne v. Anderson, 3 Bing. 88 ; Ry. & Moo. 287 ; 10 Moore, 
407. 
Evidence given before a Pioyal Commission is matter 2^uhlici juris, and 
everyone lias a perfect right to criticise it. 

Per Wickens, V.C, in Mulkern v. Ward, L. R. 13 Ecp 622 ; 
41 L. J. Ch. 464 ; 26 L. T. 831. 
So is evidence taken before a Purliamentarv Committee on a local gas 
bill. 

Hedlcy v. Barlow, 4 F. & F. 224. 
A report of the Board of Admiralty upon the plans of a naval architect, 



44 DEFAMATORY WORDS. 

submitted to the Lords of the Admiralty for their consideration, is a matter 
of national interest. 

Henv-ood v. Harrisov, L. R. 7 C. P. 606; 41 L. J. C. P. 206 ; 
20 W. R. 1000 ; 26 L. T. 938. 
The aj^pointment of a Roman Catholic to be Calendarer of State Papers 
is a matter of public concern. 

Turnbull v. Bird, 2 F. & F. 508. 
The plaintiff, who was a Q.C. and a Member of Parliament, was appointed 
recorder of Newcastle. The defendant's paper, the Lcnv Marjazine and 
Beview, thereupon discussed the desiraliility of giving such an appointment 
to a member of the House of Commons, and declared that it was a reward 
for his having steadily voted with his party. Cockburn, C. J., directed the 
jury that a public wTiter was fairly entitled to comment on the distribution 
of Government patronage ; but that he was not entitled to assert that there 
had been a corrupt promise or understanding that the plaintiff would be thus 
rewarded, if he always voted according to order. Verdict for the plaintiff' ; 
damages 40s. 

Seymour v. Bnftenrorth, 3 F. & F. 372. 



2. Administration of Justice. 

Tlic administration of the law, tlie verdicts of juries, 
the conduct of suitors and theii' witnesses, are all 
matters of lawful comment as soon as the trial is over. 
Any comment pending action is a contempt of coui-t, by 
whomsoever made ; it is especially so where the com- 
ment is supplied by one of the litigants or his solicitor 
or counsel. {Daw v. Elqj, L. E. 7 Eq. 49 ; 38 L. 
J. Ch. 113; IT W. E. 245.) 

In former days, where a trial lasted more than one 
day, newspapers were sometimes forbidden to publish any 
report of the trial from day to day ; they were ordered 
to reserve theii* whole report till the case was ended. 
But it is now clear that daily reports of the progress of 
the trial are unobjectionable, if fail- and impartial. [Lewis 
V. Levy, E. B. & E. 537 ; 27 L. J. Q. B. 282 ; 4 Jur. 
I^. S. 970.) But report is very different fi'om comment. 
No observations on the case are permitted during its 
progress, lest the minds of the jiu-y (and indeed of the 
judge) should be thereby biassed. 



\ 



ADMINISTRATION OF JUSTICE. 45 

But as soon as the case is over, every one has '' a right 
to discuss fairly and hand fide the administration of 
justice as evidenced at this trial. It is o^Den to him to 
show that error was committed on the part of the judge 
or jury; nay, further, for myself I will say that the 
judges invite discussion of their acts in the adminis- 
tration of the law, and it is a relief to them to see 
error pointed out, if it is committed ; yet, whilst they 
invite the freest discussion, it is not open to a journalist 
to impute corruption." {Per Fitzgerald, J., in R. v. 
Sullivan^ 11 Cox C. C. 57.) "That the administration 
of justice should be made a subject for the exercise of 
public discussion is a matter of the most essential im- 
portance. But, on the other hand, it behoves those 
who pass judgment, and call upon the public to pass 
judgment, on those who are suitors to, or witnesses in, 
courts of justice, not to give reckless vent to harsh and 
uncharitable views of the conduct of others; but to 
remember that they are bound to exercise a fair and 
honest and an impartial judgment upon those whom 
they hold up to public obloquy." (Cockburn, C.J., in 
Woodgate v. Piidout, 4 F. & F. 223.) 

Illustrations. 

It is not a fair comment on a criminal trial, to suggest tlmt tlie prisoner 
though acquitted, was really guilty. 

Lewis V. Walter, 4 B. & Aid. 605. 

Eish Allah Beij v. JFJiitehurst and others, 18 L. T. 615. 
A newspaper may comment upon the hearing of a cliarge of felony and 
the evidence produced thereat, and discuss the conduct of tlie magistrates 
in dismissing tlie charge without hearing the whole of the evidence ; but it 
may not proceed to disclose " evidence which might have been adduced" 
and thus argue from facts not in evidence before tlie magistrates that the 
accused was really guilty of the felony. Verdict for the plaintiif. Damaces 
£25. ° ' 

Hibhins V. Lee, 4 F. & F. 243 ; 11 L. T. 541. 

And see Hclsham v. Blackwood, 11 C. B. Ill ; 2(» L. .J. C P 187 • 
15 .Jur. 861. 

It. v. JVhite and another, 1 Camp. 359. 



46 DEFAMATORY WORDS. 

It is not a fair comment on any legal proceedings to insinuate that a 
particular witness committed perjury in the course of them. 

B,6h(iTU V, Brown, 10 Bing. 519 ; 4 Moo. & S. 407. 

Btihs V. Nokis, S. C. Carr v. Jones, 7 East, 493 ; 3 Smith, 491. 

Littler v. Tliomijson, 2 Bear. 129. 

Felkin v. Herbert, 33 L. J. Ch. 294 ; 10 Jur. N. S. G2 ; 12 W. E. 

241, 332 ; 9 L. T. 635. 

A newspaper may comment on the evidence given by any particular 

witness in any inquiry on a matter of public interest ; but may not go the 

length of declaring such evidence to be " maliciously or recklessly false." 

Verdict for the plaintiff. Damages £250. 

Heclleu v. Barloir, 4 F. & F. 224. 
The Morning Post published an article on a trial which had greatly 
excited public attention ; giving a highly coloured account of the conduct 
of the attorneys on one side, concluding witli the sweeping condemnation : 
— " Messrs. Quirk, Gammon, and Snap were fairly equalled, if not outdone," 
alluding to the notorious firm of pettifoggers in '• Ten Thousand a Year." 
This account of plaintiff's conduct was taken almost vei'batim from the 
speech of counsel on the other side, and no allusion was made to the 
evidence subsequently produced to rebut his statements. Verdict for the 
plaintiff. Damages £1000. 

JVoodgate v. Eidont, 4 F. & F. 202. 

3. Public InslUutions and Local AutJiorities. 

The working of all public institutions, such as colleges, 
hospitals, asylums, homes, is a matter of public interest, 
especially where such institutions appeal to the public 
for subscriptions, or arc supported by the rates, or are, 
like our five Universities, national property. The 
management of local affairs by the various local autho- 
rities, c.g.^ town-councils, schoolboards, vestries, boards 
of guardians, boards of health, &c., is a matter of public, 
though it may not be of universal, concern. 

Illustrations. 

" The management of the poor and the administration of the poor-law 

in each local district are matters of pirblic interest." Per Cockburn, C. J., in 

Purcell V. Solder, 2 C. P. D. 218 ; 46 L. J. C. P. 308 ; 25 W. 

E. 362 ; 36 L. T. 416. 

The official conduct of a way-warden may l)e freely criticized in the 

local press. 

Hurh V. Cathcrall, 14 L. T. 801. 



MATTERS OF PUBLIC INTEREST. 



47 



The Charity Coininissioners sent an inspector to inquire into the workin" 
of ci medical college at Birmingham. He made a report containing passages 
defamatory of the plaintiff, one of the professors. The mismanagement of 
the college continued, and increased. The warden at last filed a bill to 
administer the funds in Chancery. Thereupon the defendant, the pro- 
prietor of a local paper, procured an official copy of the report of the 
inspector, and published it vei-batim in his paper. This was nearly three 
years after the report had been written. The plaintiff contended that this 
Avas a wanton reAdval of stale matter which could not be rec^uired for 
public information ; but Cocklnirn, C. J., left it to the jury to say whether 
public interest in the matter had not rather increased than declined in the 
interval. Verdict for the defendant. 

Cox V. Feeney, 4 F. & F. 13. 

4. Ecclesiastical Affairs. 

A bishop's government of liis diocese, a rector's 
management of his parish, or of the parochial school, are 
matters of pnblic interest. So is the manner in which 
"public worship" is celebrated in the Established 
Cliiu-ch. But an unobtrusive charitable organization 
privately established by the rector in the parish is not a 
fit subject for public comment. 

Illudratlons. 

The press may comment on the fact that the incumbent of a parish has, 
contrary to the wishes of the churchwarden, allowed books to be sold in the 
church during service, ami cooked a chop in the vestry after the service 
was over. 

Kdl>j V. Tinliiuj, L. R. 1 Q. B. 699 ; 35 L. J. Q. B. 231 ; 14 
W. R. 51 ; 13 L. T. 255 ; 12 Jur. N. S. 940. 
But where a vicar started a clothing society in his parisli, expressly ex- 
fluiling all Dissenters from its benefits, it was held that this was essentially 
a private society, the members of which might manage it as they jjleased 
without being called to account by anyone outside : and that therefore a 
Dissenting organ was not justified in commenting on the limits wliich the 
vicar had imposed on the desire of his parishioners to clothe tlie poor. 

Gathercole v. Miall, 15 M. & W. 319 ; 15 L. J. Ex. 179 • 10 Jur 

337. 
And see Walker v. Brogdm, 19 C. B. N. S. G5 ; 11 Jur. N S 

671 ; 13 W. E. 809 ; 12 L. T. 495. 
Booth v. lUiscoe, (C. A.) 2 Q. B. D. 496 ; 25 W. R. 838. 
The court in Gafhercole v. Miall, ^ww efaially divided on tlie question 
whether sermons preached in open church, but not printed and published 



48 DEFAMATORY WORDS. 

Avere matter for liuLlic comment. If the sermon itself dealt with matters 
of pviLlic interest, I apprehend it miglit be. 



5. Books ^ pictures^ ^c. 

" A man wlio publishes a book challenges criticism." 
{Per Cockbnrn, C.J., in Strauss y. Francis, 4 F. & F. 
1114; 15 L. T. 675.) Therefore all fair and honest 
criticism on any published book is not libellous, unless 
the critic goes out of his way to attack the jn'ivate 
character of the author. So too it is not libellous faiily 
and honestly to criticise a painting 2niblicly exhibited, or 
the architectiu'c of any public building, however strong 
the terms of censure used may be. 

Illustrations. 

The Athemeum published a criticjiie on a novel written by the plaintiff, 
describing it as " the very worst attempt at a novel that has ever been 
perpetrated," and commenting severely on " its insanity, self-complacency, 
and vulgarity, its profanity, its indelicacy (to use no stronger word), its 
disjalay of bad Latin, bad French, bad German, and bad English," and its 
abuse of persons living and dead. After Ei'le, C. J., had summed up the 
case, the plaintiti" withdrew a juror. 

Strauss v. Francis (No. 1), 4 F. & F. 939. 
See Sir John Carr v. Hood, I Camp. 355, n. 
The Athenceum thereupon published another article stating theii- reason 
for consenting to tbe withdrawal of a juror, which was in fact that they 
considered the plaintiff would have been unable to have paid them theii' 
costs, had they gained a verdict. The plaintiff thereupon brought another 
action which was tried before Cockbnrn, C. J., and the jury ftmnd a verdict 
for the defendants. 

Strauss v. Francis (No. 2), 4 F. & F. 1107 ; 15 L. T. 674. 
It is doubtful how far a book printed for private circulation only, may 
be criticized. Per Pollock, C.B., in 

Gathercole v. Miatl, 15 M. & W. 334 ; 15 L. J. Ex. 179 ; 10 Jur. 
337. 
A comic picture of the author of a book, as author, bowing beneath the 
weight of his volume, is no libel ; though a personal caricature of him as 
he appeared in private life would be. 

Sir John Carr v. Hood, 1 Camp. 355, n. 
The articles which appear in a newspaper and its general tone and style 
may be the subject of adverse criticism, as well as any other literary 



CRITICISM ON BOOKS AND PICTURES. 49 

production ; but no attack sliould Ijc laaile on the private character of any 
writer on its staff. 

Kiriot V. Shiart, 1 Esp. 437. 
Stuart V. Lovell, 2 Stark. 93. 

Campbell v. Spottiswoode, 3 F. & F. 421 ; 32 L. J. Q. B. 185 ; 3 
B. & S. 769 ; 9 Jur. N. S. 1069 ; 11 W. R. 569 ; 8 L. T. 
201. 
The greatest art critic of the day wrote and published in Fors Clavigera 
an article on the pictures in the Grosvenor Gallery, in which the following 
passage occurred : " Lastly, the mannerisms and errors of these pictures 
(alluding to the pictures of Mr. Burne Jones), wliatever may be their 
extent, are never affected or indolent. The work is natural to the painter, 
however strange to us, and is wrought with the utmost conscience of care, 
however far to his own or our desire the result may yet be incomplete. 
Scarcely as much can be said for any other pictures of the modern school ; 
their eccentricities are almost always in some degree forced, and their 
imperfections gratuitous!}", if not impertinently, indulged. For Mr. 
Whistler's own sake, no less than for the protection of the purchaser, Sir 
Coutts Lindsay ought not to have admitted works into the gallery in which 
the Ul-educated conceit of the artist so nearly approached the aspect of 
wilful imposture. I have seen and heard much of cockney impudence 
before now, but never expected to hear a coxcomb ask 200 guineas for 
flinging a pot of paint in the public's face." The jury considered the words 
" wilful imposture " as just overstepping the line of fair criticism, and 
found a verdict for the plaintiff ; damages one farthing. Each party had to 
pay his own costs. 

Whistler v. RusUn. Times for Nov. 26th and 27th, 1878. 
Thompson v. Shackell, Moo. & Mai. 187. 
The plaintiff was a professor of architecture in the Royal Academy. 
The defendant puliished an account of a new order of architecture called 
" the Boeotian," said to be invented by the plaintiff, whom he termed " tlie 
Boeotian professor." He set forth several al)surd principles as the rules of 
this new order, illustrating them by examples of buildings all of wliich 
were the works of the plaintiff. The jury, under the direction of Lord 
Tenterden, C. J., found a verdict for the defendant. 
Soane v. Knight, Moo. & Mai. 74. 

G. Theatres, Concerts, and Public Entertainments. 

All theatrical and musical performances, flower-shows, 
public balls, &c., may be freely criticized, provided that 
the comments be not malevolent or flagrantly unjust. 

Illustrations. 

A gentleman wholly unconnected with tlie stage got up what he called 
" a Dramatic Ball." The company was disorderly and far from select. No 



so DEFAMATORY WORDS. 

actor or actress of any reputation was present at the ball, or took any 
share in the arrangements. The Era, the special organ of the theatrical 
profession, published an indignant article, commenting severely on the 
conduct of the prosecutor in starting such a ball for his own profit, and 
particularly in calling such an assembly " a Dramatic Ball." Criminal 
proceedings were taken against the editor of the Era, but the jury found 
him Not guilty. 

E. V. Ledger, Times for Jan. 14th, 1880. 

And see Dibclin v. Sxoan and Bostock, 1 Esp. 28. 
A newspaper commenting on a flower-show, denounced one exhibitor by 
name as " a beggarly soul," "famous in all sorts of dirty work," and spoke 
of " the tricks by which he and a few like him used to secure prizes " as 
being now " broken in upon by some judges more honest than usual." 
Such remarks are clearly not fau- criticism on the flower-show. 

Green v. Chapvian, 4 Bing. N. C. 92; 5 Scott, 340. 
The plaintiff, the proj)rietor of Zadkiel's Almanac, had a ball of crj-stal 
by means of which he pretended to tell what was going on in the other 
world. The Daily Telegraph published a letter which stated that the 
plaintift' had " gulled " many of the nobility with this crystal ball, that he 
took money for " these profane acts, and made a good thing of it." Cock- 
burn, C. J., directed the jury that a newspaper might expose what it 
deemed an imposition on the public ; but that this letter amounted to a 
charge that the plaintift' had made money by ^\^lful and fraudulent ndsre- 
presentations, a charge ^which should not be made "without fair grounds. 
Verdict for the plaintiff. Damages one farthing. 

Morrison v. Belcher, 3 F. & F. 614. 

7. Other Appeals to the Public . 

Whenever a medical man brings forward some new 
method of treatment, and advertises it largely as the best 
or only cui'e for some particnlar disease, or for all diseases 
at once, he may be said to invite pnblic attention. So 
when a tradesman distributes handbills or cii'culars, he 
challenges public criticism. A newspaper wiiter is 
justified in warning the public against such advertisers, 
and in exposing the absurdity of their professions, 
provided he does so faiiiy and with reasonable modera- 
tion and judgment. 

Again, where a man appeals to the public by writing 
letters to the newspaper, either to expose what he 
deems abuses, or to call attention to his own particular 
grievances, he cannot complain if the editor inserts other 



I 



1 



APPEALS TO THE PUBLIC. 51 

letters in answer to his own, refuting his charges, and 
denying his facts. A man who has commenced a news- 
paper warfare, cannot comphiin if he gets the worst of it. 
But if such answer goes further, and touches on fresh 
matter in no way connected with the plaintiff's original 
letter, or unnecessarily assails the plaintiff's private 
character, then it ceases to be an anszver ; it becomes a 
counter-charge, and if defamatory will be deemed a libel. 
So too, Avhen a man comes prominently forward in any 
way, and acquii-es for a time a ^M«5/-public position, he 
cannot escape the necessary consequence, the fi'ec ex- 
pression of public opinion. Whoever seeks notoriety, or 
invites public attention, is said to challenge public 
criticism ; and he cannot resort to the law courts, if that 
criticism be less favoui'able than he anticipated. 

Illustrations. 

A medical man who liad obtained a diploma and the degree of M.D. 
from America advertised most extensively a new and infallil^le cure for 
consumption. The Pall Mall Gazette published a leading article on the 
subject of such advertisements, in which they called the advertiser a quack 
and an impostor, and compared him to " scoundrels who pass bad coin." 
The jury gave the plaintiff one farthing damages. 

Hunter v. Bliarpe, 4 F. & F. 983 ; 15 L. T. 421. 
And see Morrison and another v. Harmer and another, 3 Bing. 
N. C. 759 ; 4 Scott, 524 ; 3 Hodges, 108. 
A marine store dealer extensively circulated a liandbill setting forth the 
high prices he was prepared to give for kitchen stuff, rags, bones, oilcloth, 
1 >rass, copper, lead, plated metals, horsehair, and old clothes. An alderman 
sitting as magistrate at Guildhall denounced this handbill as offering great 
inducements to servants to rob their masters. The alderman's remarks, 
together with the handbill itseK verbatim, were published in the Daily 
Tdecjrafh, with a heading " Encouraging Servants to Rob their Masters ; " 
and also a leading article in the same strain. The jury under the direction 
of Erie, C. J., found a verdict for the defendant. 

Paris V. Levy, 9 C. B. N. S. 342; 30 L. J. C. P. 11 ; 3 L. T. 
324 ; 9 W. R. 71 ; 7 Jur. N. S. 289; and (at Nisi Prius) 2 
F. & F. 71. 
And see Eastwood v. Holmes, 1 F. & F. 347. 
Jenner and another v. A^ Beckett, L. R. 7 Q. B. 11 ; 41 L. J. Q. B. 
14; 20 W. R. 181 ; 25 L. T. 464. 
Two clergymen were engaged in a controversy ; one, the plaintiff, wrote 

E 2 



52 DEFAMATORY WORDS. 

a pamplilet ; subsequently lie publislied a " collection of opinions of the 
press " on his own pamplilet, including an inaccurate or garbled extract 
from an article which had appeared in the defendant's newspaper. The de- 
fendant thereupon felt it his duty in justice to the other clergyman to pub- 
lish an article in his newspaper exposing the inaccuracy of the extract as 
given by the plaintiff, and accusing him of purposely adding some passages 
and sup23ressing others, so as to entirely alter the sense. Erie, C. J., 
pointed out to the jury that the defendant was maintaining the truth, and 
that although he was led into exaggerated language, the plaintiff had also 
used exaggerated language himseK. Verdict for the defendant. 

mhhs V. Wilkiiison, 1 F. & F. 608. 
But where the editor of the Lancet attacked the editor of a rival paper, 
The London Medical and Physical Journal, by rancorous aspersions on his 
private character, the plaintiff recovered a verdict, damages £5. 

Macleod v. Wahley, 3 C. & P. 311. 
So wherever a man calls public attention to his own grievances or those 
of his class, whether by letters in a newspaper, by speeches at public 
meetings, or by the publication of pamplilets, he must expect to have his 
assertions challenged, the existence of his grievances denied, and himself 
ridiculed and denounced. 

Odgcr v. Mortimer, 28 L. T. 472. 

Kcenig v. Ritchie, 3 F. & F. 413. 

R V. Veley, 4 F. & F. 1117. 

O'Donoghue v. Hiissey, Ir. R. 5 C. L. 124. 

Dwyer v. Esmonde, 2 L. R. (Ir.) 243. 
But where the defendant in answering a letter which the plaintiff has 
sent to the paj^er, does not confine himself to rebutting the plaintiff's 
assertions, but retorts upon the plaintiff by inquiring into his antecedents, 
and indulging in other uncalled for personalities, the defendant will be held 
liable ; for such imputations are neither a proper answer to, nor a fair 
comment on, the plaintiff's speech or letter. 

Murphy v. Halinn, Ir. R. 8 C. L. 127. 
Tlu'ee clergymen of the Church of England residing near Swansea, being 
Conservatives, chose to attend a meeting of the supporters of the Liberal 
candidate for Swansea ; they behaved in an excited manner, hissed and 
interrupted the speakers, and had eventually to be removed from the room 
by two policemen. Held that such conduct might fairly be commented on 
in the local newspapers ; and that even a remark that " appearances were 
certainly consistent with the belief that they had imbibed rather freely of 
the cup that inebriates " was not, imder the circumstances, a libel. 

Davis V. Duncan, L. R. 9 C. P. 396 ; 43 L. J. C. P. 185 ; 22 
W. R. 575 ; 30 L. T. 464. 



SLANDER. 53 



PART II. 



SLANDER. 



Words which are clearly defamatory when written 
and published may not be actionable when merely 
spoken; for then other considerations apply. The 
reasons for the distinction have been already discussed, 
ante, pp. 3 — 5, c. I. Spoken words are defamatory when- 
ever special damage has in fact resulted from their use. 
Spoken words are also defamatory when the imiDutation 
cast by them on the plaintiff is on the face of it so 
injurious that the Court will presume, without any 
proof, that his reputation must be impaired thereby. 
And the Court will so presume in three cases : — 

I. Where the words charge the plaintiff with the 
commission of some indictable offence ; or, 

II. Impute to him a contagious or infectious disease 
tending to exclude him from society ; or, 

III. Are spoken of him in the way of his office, pro- 
fession, or trade. 

In no other case are spoken words defamatory, 
unless they have caused some special damage to the 
plaintiff. 



54 DEFAMATORY WORDS. 

I. Where the ivords impute an indictahle offence. 

Sj)okcn words, which impute that the plaintiff has 
been guilty of an indictable offence, are actionable 
without proof of special damage. If the offence imputed 
be not indictable, but only punishable summarily before 
a magistrate by penalty or fine, the words will not be 
actionable 2^0' se. 

If, however, there be any offences which are not indictable, 
but for which a magistrate can inflict imprisonment with hard 
labour in the first instance (not merely in default of payment 
of a fine imposed), I apprehend that to impute such an offence 
to the plaintiff would be actionable X)er se. Words imputing to 
a licensed victualler that he had been guilty of an offence against 
the Licensing Acts would be actionable as spoken of him in the 
way of his trade : and so would words spoken of a dairyman or 
grocer falsely alleging that he had been convicted under the 
Sale of Food and Drugs Act, 1875. Holt, C. J., in Ogden 
V. Turner, 6 Mod. 104 ; Holt, 40 ; 2 Salk. 696, lays it down that 
every charge of treason or felony is actionable, but not every 
charge of misdemeanour, only of such as entail a " scandalous " 
and "infamous" punishment. But what misdemeanours are 
included in the terms " scandalous " or " infamous," or, rather, 
what misdemeanours are oiot included ? The epithets appear 
to me to mean nothing more than that the charge must be of 
such a nature that, if believed, it would impair the reputation 
of the person accused. If so, this would include all indictable 
misdemeanours, except, perhaps, such semi-civil proceedings as 
an indictment for the obstruction or non-repair of a highway. 
The word " infamous " clearly cannot now be taken in its 
strictest legal sense to signify a punishment which renders the 
person convicted incapable of giving evidence in the law courts. 
(See the remarks of Grey, C. J., in Onsloiv v. Home, 3 Wils. 
186 ; 2 W. Bl. 753.) In Lady CocJcaiiie's case, Cro. Eliz. 49, 
the argument of the judge seems to imply that words are 
actionable which impute to the plaintiff an act which would 
be cause to bind her over to good behaviour : but I can find 
no other authority for such a doctrine. 



WORDS IMPUTING A CRIME. 55 

Illustrations. 

A general charge of felony is actionable, though it does not specify any 
particular felony. E.(j. : 

"If you had had your deserts, you would have been hanged before now." 

Bonne's Case, Cro. Eliz. 62. 
" He deserves to have his ears nailed to the pillory." 

JenJcinson v. Mayne, Cro. Eliz. 384; 1 Vin. Abr. 415, 
" You have committed an act for which I can transport you." 

C'lcrtis V. Curtis, 10 Bing. 477 ; 3 M & Scott, 819 ; 4 M. & Scott, 
337. 
" You have done many things for which you ought to be hanged, and I 
will have you hanged." 

Francis v. Eoose, 3 M. & W. 191 ; 1 H. & H. 36. 
So are all charges of specific felonies. E.g. : 
Assault with intent to rob : — 

Lewhior v. Cruchley and loife, Cro. Car. 140. 
Attempt to murder : — 

Scot et ux. v. Hilliar, Lane, 98 ; 1 Vin. Abr. 440. 

Preston v. Finder, Cro. Eliz. 308. 
Attempt to rob : — 

Sir Harbert Croft v. Broion, 3 Buls. 167. 
Bigamy :— 

Heming et uo;. v. Poioer, 10 ]\I. & "\V. 564. 

Delany v. Jones, 4 Esp. 190. 
Burglary : — 

Somers v. House, Holt, 39. 
Demanding money ^vith menaces : — 

Neve V. Cross, Sty. 350. 
Embezzlement : — 

Williams v. Stott, 1 C. & M. 675 ; 3 Tyrw. 688. 
Forgery : — 

Baal V. Baggerley, Cro. Car. 326. 

Jones V. Heme, 2 Wils. 87. 
Larceny : — 

Foster v. Broioning, Cro. Jac. 688. 

Baler v. Pierce, 2 Ld. Raym. 959 ; Holt, 654 ; 6 Mod. 23 ; 2 
Salk. 695. 

Sloiimian v. Button, 10 Bing. 402. 

Tomlinson v. Briftkhank, 4 B. & Ad. 630 ; 1 N. & M. 455. 
Manslaughter : — 

Ford V. Primrose, 5 D. & R. 287. 

Edsall v. Ptussell, 4 M. & G. 1090; 5 Scott, N. R. 801; 2 D. 
N. S. 641 ; 12 L. J. C. P. 4 ; 6 Jur. 996. 
Murder : — ■ ^ 

Peake v. Oldham, Cowp. 275 ; S. C. Sub nom. Oldham v. Peake, 
2 W. Bl. 959. 

Button V. Hay ward, 8 Mod. 24. 



56 DEFAMATORY WORDS. 

Keceiving stolen goods, knowing them to have been stolen : — 

Brigg's Case, God. 157. 

Clarke's Case de Dorchester, 2 Eolle's Rep. 136. 

Alfred v. Farlo^c, 8 Q. B. 854 ; 15 L. J. Q. B. 258 ; 10 Jur. 
714. 
Eobbery : — 

Laiorencc v. Woodward, Cro. Car. 277 ; 1 Roll. Abr. 74. 

Rowdiffe v. FAmcnds et ux., 7 M. & W. 12 ; 4 Jur. 684. 
Treason : — 

Sir William Waldegrave v. Ralph Agas, Cro. Eliz. 191. 

Stapleton v. Frier, Cro. Eliz. 251, 

Fry V. Came, 8 Mod. 283, 
Unnatural offences : — 

Woolnoth V. Meadows, 5 East, 463 ; 2 Smith, 28. 

Colman v. Godwin, 3 Dougl. 90 ; 2 B. & C. 285 (n). 
So it is actionable without proof of special damage to charge another with 
the commission of the following misdemeanours : — 
Bribery and corruption : — 

Bendish v. Lindsay, 11 Mod. 194, 
Conspiracy: — 

Tihhott V, Haynes, Cro, Eliz. 191. 
Keeping a bawdy-hoiise : — 

Anonymous, Cro. Eliz. 643. 

Brayne v. Cooper, 5 M. & W. 249. 

micJcle V. Reynolds, 7 C. B. N. S. 114. 
Libel :— 

Sir William Russell v. Ligon, 1 Roll. Abr. 46 ; 1 Vin. Abr, 
423. 
Perjury : — 

Ceeley v. Hoskins, Cro. Car, 509. 

Holt V. Scholefield, 6 T, R. 691. 

Roberts v, Camden, 9 East, 93. 
Even in an ecclesiastical Court, 

Shaw V. Tlwmpson, Cro. Eliz, 609, 
Soliciting another to commit a crime : — 

Sir Thomas Cockaine and wife v. Witnam, Cro, Eliz. 49, 

Leversage v. Smith, Cro. Eliz. 710. 

Tihhott v. Haynes, Cro. Eliz. 191. 

Passie v. Mondford, Cro. Eliz. 747. 

But see Eaton v, Allen, 4 Rep. 16 ; Cro. Eliz. 684. 
Subornation of perjury : — 

Guerdon v. Wintcrstud, Cro, Eliz, 308. 

Harris v. Dixon, Cro. Jac. 158. 

Bridges v, Playdel, Brownl. & Golds. 2. 

Harrison v, Thornhorough, 10 Mod. 196 ; Gilbert's Cases in Law 
& Eq. 114, 
Where the words impute merely a trespass in pursuit of game, punish- 
able primarily by fine alone, no action lies without proof of special damage, 






WORDS IMPUTING A CRIME. 57 

although imprisonment in the pillory may be inflicted in default of pay- 
ment of the fine (3 Wm. & M. c. 10). 

Ogden v. Timur (1705), 6 Mod. 104 ; Salk. 696 ; Holt, 40. 
[Certain dicta in this case which appear to go further, were disapproved 
of by Grey, C. J., in 3 Wils. 186, and must be now considered as bad 
law.] 

Where the words impiited an [offence against the Fishery Acts, punish- 
able only by fine and forfeiture of the nets and instruments used : Kdd 
that no action lay without proof of special damage. 

McOaU V. Foot, 18 Ir. Jur. (Vol. xi. N. S.) 287 ; 15 L. T. 115. 
To state that criminal proceedings are about to be taken against the 
plaintiff (e.(/., that the Attorney-General had directed a certain attorney to 
prosecute him for perjury) is actionable, although the speaker does not 
expressly assert that the plaintiff is guilty of tlie charge. 
Roberts v. Camden, 9 East, 93. 
Tempest v. Cliamhers, 1 Stark. 67. 

Contra, Harrison v. King, 4 Price, 46 ; 7 Taunt. 431 ; 1 B. & 
Aid. 161. 
Words which merely impute a criminal intention, not yet put into action, 
are not actionable. Guilty thoughts are not a crime. But as soon as any step 
is taken to carry out such intention, as soon as any overt act is done, an 
attempt to commit a crime has been made : and every attempt to commit 
an indictable oftence is at common law a misdemeanour, and in itself indict- 
able. To impute such an attempt is therefore clearly actionable. 
Harrison v. Strattou, 4 Esp. 217. 
Words which merely disclose a suspicion that is in the speaker's mind, 
and which the bystanders could not understand as conveying any definite 
charge of felony, are not actionable. 

Tozer v. Mashford, 6 Ex. 539 ; 20 L. J. Ex. 225. 

It is not necessary that the words shoiikl accuse 
the plaintiii of some fresh, undiscovered crime, so as to 
put him in jeopardy or cause his arrest. Of com-se, if 
such consequences have followed, they may be alleged 
as special damage ; but where such consequences are im- 
possible, the words are still actionable. Thus, to call a 
man a returned convict, or otherAvise to falsely impute 
that he has been tried and convicted of a criminal offence, 
is actionable without special damage. 

For it is at least quite as iujurious to the plaintiffs reputa- 
tion, to say that he has in fact been convicted, as to say that he 
will be, or ouglit to be, convicted. Many think that such state- 



S8 DEFAMATORY WORDS. 

ments should be actionable, even when true, if they are mali- 
ciously or unnecessarily volunteered. See "post, p. 179, c. VII. 

llliisivaiions. 

It is actionable witliout proof of special damage to say of the plaintiff — 
that he had been in Launceston gaol and was burnt in the hand for 
coining, 

Gainford v. I'uke, Cro. Jac. 536 ; 
that he " was in Winchester gaol, and tried for his Ufe, and would have 
been hanged, had it not been for Leggatt, for breaking open the 
granary of farmer A. and stealing his bacon." [Note that here the 
speaker appears to admit that the plaintiff was acquitted, but still 
asserts that he was in fact guilty.] 

Carpenter v. Tarrant, Cas. temp. Hardwicke, 339. 
" He was a thief and stole my gold." It was argued here that " was " 
denotes time past ; so that it may have been Avhen he was a child, and 
therefore no larceny ; or in the time of Queen Elizabeth, since when there 
had been divers general pardons : Sed per cur. : " it is a great scandal to be 
once a thief ; ior pcena potest redimi, culpa perennis erit." 
Boston V. Tatam, Cro. Jac. 623. 
It is actionable to call a man " thief " or " felon," even though he once 
committed larceny, if after conviction he was pardoned either under the 
Great Seal or by some general statute of pardon. 

Chiddington v. Wilhins, Hobart, 67, 81 ; 2 Hawk. P. C. c. 37, 

s. 48. 
Leyman v. Latimer and others, 3 Ex. D. 15, 352 ; 46 L. J. Ex. 
765 ; 47 L. J. Ex. 470 ; 25 W. R. 751 ; 26 ^\. R. 305 ; 37 
L. T. 360, 819. 
It is actionable to call a man falsely " a returned convict." 
Fowler v. Doivdney, 2 M. & Rob. 119. 

In dealing with old cases on this point, care must be taken 
to remember the state of the criminal law as it existed at the 
date of publication. 

Illustrations. 

So long as the 18 Eliz. c. 3 was in force, it Avas actionable to charge a 
woman -with being the mother, a man with being the putative father, of a 
bastard child, chargeable to the parish, 

Anne Davis's Case, 4 Rep. 17 ; 2'Salk. 694 ; 1 Roll. Abr. 38. 

Salter v. Broivne, Cro. Car. 436 ; 1 Roll. Abr. 37. 
So long as the penal statutes against Roman Catholics were in force it 
was actionable to say " He goes to mass," or " He harboiu-ed his son, know- 
ing him to be a Romish priest." 

Waldcn v. Mitchell, 2 Ventr. 265. 

Smith v. Flyyit, Cro, Jac, 300. 



WORDS IMPUTING A CRIME. 59 

Bccus, before such statutes were laassed. 

Pierepoint'' s Case, Cro. Eliz. 308. 
So in many old cases sucli words as " She is a witch " were hekl action- 
able, the statute, 1 Jac. I. c. 11, being then in force. But that statute is 
now repealed by the 9 Geo. II. c. 5, s. 3, which also expressly provides that 
no action shall lie for charging another with witchcraft, sorcery, or any 
such oflfence, 

Borjers v. Gravat, Cro. Eliz. 571. 

Dacy V. Clinch, Sid. 53. 
It was formerly the custom of the City of London, of the borough of 
Southwark, and also, it is said, of the city of Bristol, to cart whores. 
Hence to call a woman " whore " or " strumpet " in one of those cities is 
actionable, if the action be brought in the City Courts, which take notice 
of their own customs without proof. But no action will lie in the Superior 
Courts at Westminster for such words, because such custom has never been 
certified by the Eecorder, and would now be difficult to prove. 

Oxford et m\ v. Cross (1599), 4 Rep. 18. 

Hassell v. Capcot (1639), 1 Vin. Abr. 395 ; 1 Roll. Abr. 36. 

Cooke v. Wincjfield, 1 Str. 555. 

Roberts v. Herbert, Sid. 97; 1 Keble, 418. 

Staintonetux. v. /o7ies, 2 Selw. N. P. 1205^(13th edn.) ; 1 Dougl. 
380, n. 

Theyer v. Eastwick, 4 Burr. 2032. 

Brand and xvife v. Roberts and wife, 4 Burr. 2418. 

Vicars v. Worth, 1 Str. 471. 
So it was in 1602 held not actionable to say: — "Thou hast received 
stolen swine, and thou knowest they were stolen ; " for receiving is not a 
common law offence, unless it amounts to comforting and assisting the 
felon as an accessory after the fact. But ever since 3 Wm. & Mary, c. 9, 
s. 4, and 4 Geo. I. c. 11, such words would be clearly actionable, 

Dawes v. Bolton or Boughton, Cro. Eliz. 888 ; 1 Roll. Abr. 68. 

Cox V. Humphrey, Cro. EHz. 889. 
A charge of deer stealing would be actionable now, though in 1705 it 
was held not actionable, because it was subject only to a penalty of £30. 

Ogden v. Turner, Salk. 696 ; Holt, 40 ; 6 Mod. 104. 
So now it would of course be actionable to accuse a man of secreting a 
will : though such an accusation was held not actionable in 

Godfrey v. Given, Palm. 21 ; 3 Salk. 327. 
Where a vicar of a parish falsely declared that the plaintift', a parishioner, 
was excommunicated, it was held an action lay ; possibly because the 
person excommunicated was at that date liable to imprisonment under the 
writ de excommunicato aqnendo ; but there seems to have been some allega- 
tion of special damage in the declaration. 

Barnabas v. Traunter, 1 Vin. Abr. 396. 
But an accusation of adultery, fornication, &c., was never ground for an 
action in the civil courts. The person accused had a remedy in the spiritual 
courts till the 18 & 19 Vict. c. 41 : now he has none. 



6o DEFAMATORY WORDS. 

The charge must be clearly that of an indictable 
offence, although it need not be stated with all the pre- 
cision of an indictment. If merely fi-aud, dishonesty, 
immorality, or vice, be imj)uted, no action lies without 
proof of special damage. And even where words of 
specific import are employed (such as *' thief" or 
"traitor"), still, if the defendant can satisfy the juiy 
that they were not intended to impute any specific crime, 
but merely as general terms of abuse, and meant no more 
than "rogue" or "scoundrel," and were so understood 
by all Avho heard the conyersation, no action lies. Eut 
if the bystanders reasonably understand the words as 
defiiiitely charging the plaintiff with the commission of 
some specific crime, an action lies. 

Illustrations. 

" You forged my name : " these words are actionable, althougli it is not 
stated to wliat deed or instnrment. 

Jones V. Heme, 2 "\Yils. 87. 

Overruling Anon. 3 Leon. 231 ; 1 Roll. Abr. 65. 
To say tliat a man is " forsworn " or " lias taken a false oath " is not a 
sufficiently definite charge of perjury ; for there is no reference to any 
judicial proceeding. But to say " Thou art forsworn in a Court of record " 
is a sufficient charge of perjury ; for this will be taken to mean that he was 
forsworn while giving e^vidence in a Court of record before the lawfully 
appointed judge thereof on some point material to the issue before him. 

Stanhope v. Blith (1585), 4 Rep. 15. 

Holt V. Scholefield, 6 T. R. 691. 

Ceeh/ V. Hoskins, Cro. Car. 509. 
To say " I have been robbed of three dozen winches ; you bought two, 
(me at 3s., one at 2s. ; you knew well when you bought them that they 
cost me three times as much making as you gave for them, and that they 
could not have been honestly come by," is a sufficient charge of receiving 
stolen goods, knowing them to have been stolen. [An indictment which 
merely alleged that the prisoner knew the goods were not honestly come by 
would be bad. R. v. TFilson, 2 Mood. C. C. 52.] 

Alfred v. Farlow, 8 Q. B. 854 ; 15 L. J. Q. B. 258 ; 10 Jur. 714. 
" He is a pick-pocket ; he picked my pocket of my money," was once 
held an insufficient charge of larceny. 

TFalls or JVatts v. Rymes, 2 Lev. 51 ; 1 Ventr. 213 ; 3 Salk. 
325. 



WORDS IMPUTING A CRIME. 6i 

But now this would clearly be held sufficient. 

Baker v. Pierce, 2 Ld. Raym. 959 ; Holt, G54 ; 6 Mod. 23 ; 2 

Salk. 695. 
Stebhing v. Warner, 11 Mod. 255. 
" He has defrauded a mealman of a roan horse " held not to imply a 
criminal act of fraud ; as it is not stated that the mealman was induced to 
part with his property by means of any false pretence. 
Richardson v. Allen, 2 Chit. 657. 
So none of the following words are actionable without proof i^f special 
damage : — 
«' Cheat " :— 

Savage v. Eohenj, 2 Salk. 694 ; 5 Mod. 398, 
Davis V. Miller et ux., 2 Str. 1169. 
" Swindler " : — 

Savile v. Jardine, 2 H. Bl. 531. 
Black V. Hunt, 2 L. R. Ir. 10. 
TFard v. JVeeks, 7 Bing. 211 ; 4 M. & P. 796. 
" Rogue," " rascal," " villain," &c. :— 
Slanhope v. Blith, 4 Rep. 15. 
"Runagate ": — 

Cockainc v. Hopkins, 2 Lev. 214. 
" Cozener ": — 

Brunkard v. Segar, Cro. Jac. 427 ; Hutt. 13 ; 1 Vin. Abr. 427. 
" Common-filcher ": — 

Goodale v. Castle, Cro. Eliz. 554. 
"Welcher":— 

Blackman v. Bryant, 27 L. T. 491. 
Nor are the words " gambler," " black-leg," " black-sheep," unless it can be 
shown that the bystanders understood the words to imply " a cheating 
gambler punishable by the criminal law." 

Burnett v. Allen, 3 H. & N. 376 ; 27 L. J. Ex. 412 ; 1 F. & F. 
125 ; 4 Jur. N. S. 488. 



If the crime imputed be one of which the plaintifi 
could not by any possibility be guilty, and all who heard 
the imputation knew that he could not by any possibility 
be guilty thereof, no action lies, for the plaintiff is never 
in jeopardy, nor is his reputation in any way impaired. 
(Buller's N. P. 5.) 

Illustrations. 

Words complained of : — " Thou hast killed my wife." Everyone who 
heard the words knew at the time that defendant's wife was still 



62 DEFAMATORY WORDS. 

alive: they could not therefore understand the word "kill" to mean 
" murder." 

Bnag v. Gee,, 4 Eep. 16, as explained by Parke, B., in Heming v. 
Poioer, 10 M. & W. 569. 

And see TFeb v. Poor, Cro. Eliz. 569. 

Talbot V. Case, Cro. Eliz. 823. 

Dacy V. Clinch, Sid. 53. 

Jacob V. Mills, 1 Ventr. 117; Cro. Jac, 343. 
It is no slander to say of a churchwarden that he stole the bell-ropes of 
his parish church ; for they are officially his property ; and a man cannot 
steal his own goods. 

Ja,ckson v. Adams, 2 Bing. N. C. 402 ; 2 Scott, 599 ; 1 Hodges, 

339. 

So it is not actionable for A. to charge a man who is not A.'s clerk or 

servant with embezzling A.'s money ; for no indictment for embezzlement 

would lie. [But surely this can only be the case where the bystanders are 

aware of the exact relationship between A. and the plaintiff.] 

Williams v. Stott, 1 C. & M. 675 ; 3 Tyrw. 688. 
But where a married woman said, " You stole my faggots," and it was 
argued for the defendant that a married woman could not own faggots, and 
therefore no one could steal faggots of hers : the Court construed the words 
according to common sense and ordinary usage to mean, " You stole my 
Jiusband's faggots." 

Stamf and u-ife v. JVliite and icife, Cro. Jac. 600. 

Charnel's Case, Cro. Eliz. 279. 

When the charge is made homi fide while giving the plaintiff 
into custody or prosecuting him according to law, it will be 
privileged; see post, c. VIIL, pp. 220, 221. 



II. Where the words impute a contagions 
disease. 

Words imputing to the plaintiff that he has an in- 
fectious or contagious disease are actionable without 
proof of special damage. For the effect of such an im- 



f 



WORDS IMPUTING A CONTAGIOUS DISEASE. 63 

putation is naturally to exclude the plaintiff from society. 
Such disease may be either leprosy, venereal disease, or, 
it seems, the plague [Villers v. Monslei/, 2 "Wils. 403); 
but not the itch, the falling sickness, or the small-pox ; 
there is not such terror of infection in the latter cases. 
The words must distinctly impute that the plaintiff has 
the disease at the time of publication : an assertion that 
he has had such a disease would clearly be no ground for 
his being shunned. ( CarslaJce v. Mapledoram^ 2 T. E. 473 ; 
Taylor v. Hall, 2 Str. 1189.) 

Any words which the hearers would natm-ally under- 
stand as conveying that the plaintiff then has such a 
disease are sufficient. Many distinctions are drawn in 
old cases about the pox, a word which may imply either 
the actionable syphilis, or the more harmless small-pox. 
It has been decided that " he has the pox" {simpliciter) 
shall be taken to mean '' he has the small-pox ; " but 
that if any other words be used referring to the effects 
of the disease, or the way in which it was caught, or 
even the medicine taken to cui-e it, these may be referred 
to as determining which pox was meant. 

Illustrations. 

To say of a person, " He liatli tlie falling sickness " is not_actionable 
unless it be spoken of him in the way of his profession or trade. 
Taylor v. Pcrr (1607), RoUe's Abr. 44. 
To say to the plaintiff, " Thou art a leprous knave," is actionable, 
Taylor v. Perkins (1607), Cro. Jac. 144 ; Rolle's Abr. 44. 
To say of the plaintiff that " He hath the pox " is actionable, whenever 
the word " wench " or " whore " occurs in the same sentence. 
Brook V. Wise (1601), Cro. Eliz. 878. 
Pye V. TFallis (1658), Carter, 55. 
Grimes v. Lovel, 12 Mod. 242. 
Whitfield V. Powel, 12 Mod. 248. 
Clifton V. Wells, 12 Mod. 634. 
Bloodworth v. Grey, 7 M. & Gr. 334 ; 8 Scott, N. R. 9. 



64 DEFAMATORY WORDS. 



III. Words which are spoken of the ^ylaintif in the ivay of 
his profession or trade ; or disparage him in an office 
of public trust. 

Such words are actionable without proof of any special 
damage. It must injure the plaintiff's reputation to 
disparage him in his very means of livelihood. Where 
the Court sees that the words spoken affect the plaintiff 
in his office, profession, or trade, and dii-ectly tend to 
prejudice him therein, they ask for no further proof of 
damage. But it must always be averred on the record 
that the words were spoken of the plaintiff in relation to 
his office, profession, and trade, and that he held such 
office, or was actively engaged in such profession or 
trade, at the time the words were spoken. [Bellamy v. 
Burch, 16 M. & W. 590.) 

The office held by the plaintiff need not be one of profit ; it 
may be merely confidential and honorary, as that of a justice of 
the peace. Which is a fresh proof that the gist of an action of 
slander is the injury to the plaintiff's reputation, and not an}'- 
presumed pecuniary loss. It would be impossible to presume 
that a justice of the peace loses any money by being falsely 
charged with corruption orextoi'tion ; for there is no emolument 
attached to his office : yet he may recover heavy damages for 
the slander. So, too, a physician or a barrister may sue for 
any slander imputing professional misconduct, although in con- 
templation of law their fees are mere gratuities. 

Ulustrations. 

It is actionaljle without proof of special damage : — 
To say that a judge gives corrupt sentences. 

Ccesar v. Cursedly, Cro. Eliz. 305. 
To say that a clergyman had been guilty of gross immorality and had 
appropriated the sacrament money. 

Highnore v. Earl and Countess of Harrington, 3 C. B. N. S. 142. 



WORDS CONCERNING TRADERS, ETC. 65 

To say of an attorney that he deserved to lie struck off the roll. 
Phillijis V. Janscn, 2 Esp. 624. 
JVarton v. Gearing, 1 Vict. L. R. C. L. 122. 
To say of a watchmaker, " he is a bungler, and knows not how to make a 
good watch." 

Redman v. Pyne, 1 Mod. 19. 
To in any way impute insolvency or bankruptcy to any merchant or 
trader. 

Ame V. Johnson, 10 Mod. 111. 
Davis V. Leivis, 7 T. R. 17. 



But it by no means follows that an// words sjDoken to 
the disparagement of an officer, in-ofessional man, or 
trader, will ipso facto be actionable jfj>^r se. Words 
to be actionable on this ground, " must touch the plaintiff 
in his office, profession, or trade : " that is, they must 
be shown to have been spoken of the plaintiff in relation 
thereto, and to be such as Avould prejudice him therein. 
They must impeach either his skill or knowledge, or 
his official or professional conduct. It is true that his 
special office or situation need not be expressly referred 
to, if the charge made be such as must necessarily 
affect it. And in determining whether the Avords used 
would necessarily affect the plaintiff in his office, pro- 
fession, or trade, regard must be had to the rank and 
position of the plaintiff', and to the mental and moral 
requirements of the office he holds. Words may be 
actionable if spoken of a clergyman or a barrister, which 
would not be actionable of a trader or a clerk. 

Thus, where integrity and ability are essential to 
the due conduct of ^plaintiff's office, words impugning 
the integrity or ability of the plaintiff' are clearly 
actionable without any express mention of that office ; 
for they distinctly imply that he is unfit to continue 
therein. But where the plaintiff does not hold any 
situation of trust or confidence, AVords wliich merely 
convey a general imputation of dishonesty, or charge 



66 DEFAMATORY WORDS. 

Mm with some misconduct not connected with his special 
profession or trade, "will not be actionable. 

Illustrations. 

To impute immorality or adultery to a beneficed clergyman is actionable ; 
for it is ground of deprivation. 

GalUmj V. Munhall, 9 Excli. 294 ; 23 L. J. Ex. 78 ; 2 C. L. E. 
399. 
Not so in the case of a pliysician. 

Ayre v. Craven, 2 A. & E. 2 ; 4 Nev. & M. 220. 
Or a staymaker. 

Brayne v. Cooper, 5 M. & T\*. 249. 
Or a clerk to a gas company. 

Lumhy v. Alldciy, 1 C. & J. 301 ; 1 Tyrw. 217. 
To say of a superintendent of police that "he has been guilty of conduct 
iTutit for jxiblication " is not actionable, unless the words were spoken of 
him with reference to his office. 

James v. Broolc, 9 Q. B. 7 ; 16 L. J. Q. B. 17 ; 10 Jur. 541. 
It is actionable to impute /ia&i7u«? drunkenness to a beneficed clergyman. 

Dod V. Robinson, Al. 63. 
Or to a master mariner in command of a vessel. 

Tncin v. Brandicood, 2 H. & C. 960 ; 33 L. J. Ex. 257 ; 9 L. T. 
772 ; 10 Jur. N. S. 370 ; 12 W. E. 438. 
Or to a schoolmaster. 

Brandrick v. Johnson, 1 Vict. L. E. C. L. 306. 
It would not be actionable where sobriety was not an essential qualifica- 
tion for the post. And to state that a clergyman or a schoolmaster was 
drank on one particuhxr occasion, and that neither in church nor in school, 
would not be actionable ; as that alone would not necessitate his removal 
from his office. 

Tighe v. Wicks, 33 Up. Can. Q. B. Eep. 470. 
Brandrick v. Johnson, 1 Vict. L. E. C. L. 306. 
And see Hume v. Marshall, Times, Nov. 26th, 1877. 
To sny of an attorney that "he hath the falling sickness" is actionable, 
without special damages, because that disables liim in his profession. 
Taylor v. )Perr (1607), 1 EoU. Abr. 44. 
But it is not actionable to say of an attorney, " He has defrauded, his 
creditors and has been horsewhipped off the course at Doncaster ; " for it is 
no part of his professional duties to attend liorse-races. 

Doyley v. Eoherts, 3 Bing. N. C. 835 ; 5 Scott, 40 ; 3 Hodges, 154. 
To say of a livery-stable-keeper : — " You are a regular prover under 
bankruptcies, a regular bankrupt naaker," is not actionable ; for it is not a 
charge against him in the way of his trade. 

Angle v. Alexander, 7 Bing. 119 ; 1 Cr, & J. 143 ; 4 M. & P. 
870 ; 1 Tyrw. 9. 
But it is actionable without proof of special damage to say of a game- 



WORDS CONCERNING TRADERS, ETC. 67 

keeper that " he trapped three foxes ; " for tliat wouhl be misconduct in a 
gamekee^^er. 

Foulgcr v. Newcomb, L. E. 2 Ex. 327 ; 36 L. J. Ex. 1C9 ; 15 
W. E. 1181 ; 16 L. T. 595. 
So to say of an auctioneer, " You are a deceitful rascal, a villain, and a 
liar. I would not trust you with an auctioneer's licence. You robbed a 
man you called your friend ; and, not satisfied with ^10, you robbed him 
of <£20 a fortnight ago," was held actionable by Cockburn, C. J., in 
Eamsdale v. Greenacre, 1 F. & F. 61. 
And see Bryant v. Loxton, 11 Moore, 344. 
But to say of a land speculator, " He cheated me of 100 acres of land," 
was held in Canada not to touch him in his trade and therefore not 
actionable. 

Felloives v. Hunter, 20 Up. Can. Q. B, 382. 
See Sibleij v. Tomlins, 4 Tyrw. 90, iiost, jd. 80. 
To call a dancing mistress " an hermaphrodite " is not actionable ; for 
girls are taught dancing by men as often as by women. 

JFetherhead v. Armitage, 2 Lev. 233 ; 3 Salk. 328 ; Freem. 277; 
2 Show. 18. 
To say of the keeper of a restaurant, " You are an infernal rogue and 
swindler," was held not to be actionable without proof of special damage ; 
as not of themselves necessarily injurious to a restaurant keeper ; for, as the 
Supreme Court of Victoria remarked, " in fact there might be very success- 
ful restaurant-keepers, who were both rogues and swindlers." 

Brady v. Youlden, Kerferd and Box's Digest of Victoria Cases, 
709 ; Melbourne Argus Reports, 6 Sept. 1867. 
So to call a carpenter " a rogue," or a cooper "a varlet and a knave," is 
clearly not actionable j^cr se ; for the words do not touch them in their 
trades. 

Lancaster Y. French, 2 Str. 797. 
Cotes V. Ketle, Cro. Jac. 204. 
A declaration alleged that the defendant falsely and maliciously spoke of 
the plaintiff, a M'orking stone-mason, '•' He was the ringleader of the nine 
hours' system," and " He has ruined the town by bringing about the 
nine hoiirs' system," and " He has stopped several good jobs from being 
carried out, by being the ringleader of the system at Llanelly," ^^■hereby 
the plaintiff was prevented from obtaiiiing employment in his trade at 
Llanelly : — Held, on demurrer, that, the words not being in themselves 
defamatory, nor connected by averment or by implication Avith the plaintift"'s 
trade, and the alleged damage not being the natural or reasonable conse- 
quence of the speaking of them, the action could not be sustained. 

Miller V. David, L. R. 9 C. P. 118 ; 43 L. J. C. P. 84 ; 22 W. E. 
332 ; 30 L. T. 58. 

Again, where a special kind of knowledge is essential 
to the proper condnct of a particular profession, denying 
that the plaintiff possesses such special knowledge will 

F 2 



68 DEFAMATORY WORDS. 

be actionable, if the plaintiff belongs to that particular 
profession, but not otherwise. 

lllusiraiions. 

It lias been held actionable without special damage : — 

To say of a barrister, " He is a dunce, and will get little by the law" 
[though here it was argued for the defendant that Duns Scotus was " a 
great learned man ; " that though to call a man " a dunce " might, in 
ordinary parlance, imply that he was dull and heavy of wit, yet it did not 
deny him a solid judgment ; and tliat to say "he will get little by the 
law " might only mean that he did not wish to practise]. 
Peard v. Jones (1635), Cro. Car. 382. 
To say of an attorney," He has no more law than Master Cheyny's bull," 
or " He has no more law than a goose." 

Baker v. Morfite, vel Morphew, Sid. 327 ; 2 Keble, 202. 
[According to the report in Keble, an objection was taken in this case on 
behalf of the defendant, that it was not averred in the declaration, " that 
Cheyny had a bull, scd non allocatur, for the scandal is the greater, if he 
had none." And the Court adds a solemn qiuere as to saying " He has no 
more law than the man in the moon," feeling no doubt a difficulty as to 
ascertaining the precise extent of that individual's legal acquirements. 
But see Day v. Buller, 3 Wils. 59, jwst, p. 75, where the Court strangely 
decides that it is defamatory to say of an attorney that "he is no more a 
lawyer than the devil ! "] 

To say of an attorney : — " He cannot read a declaration." 

Powell V. Jones, 1 Lev. 297. 
To say of a physician that " he is no scholar," " because no man can be 
a good physician, unless he be a scholar." 

Carvdren v. Highley, al. Tythay, Cro. Car. 270 ; Godb. 441. 
To say of the deputy of Clarencieux, king-at-arms, " He is a scrivener 
and no herald." 

BrooU v. Clarh, Cro. Eliz. 328 ; 1 Vhi. Abr. 464. 
To say of a midwife, " Many have perished for her want of skill." 

Flowers' Case, Cro. Car. 211. 
To charge an apothecary with having caused the death of a cliild by 
administering to it improper medicines. 

Edsall V. Bussell, 4 M. & Gr. 1090 ; 5 Scott N. E. 801 ; 2 Dowl. 

N. S. 641 ; 12 L. J. C. P. 4 ; 6 Jur. 996. 
Tutty V. Aleu'in, 11 Mod. 221. 
Where an architect is engaged to execute certain work, it is a libel upon 
him in the way of his profession to write to his employers asserting that he 
has no exj^erience in that particular kind of work, and is therefore unfit to 
be entrusted with it. 

Botterill and another v. Uliytehead, 41 L. T. 588. 
But since no special learning or ability is expected of a justice of the 
peace it is not actionable to call him " fool," " ass," " blockhead," or any 



WORDS CONCERNING TRADERS, ETC. 69 

other words merely imputing want of natural cleverness or ignorance of 
law. But vrords which imj^ute to him corruption, dishonesty, extortion, or 
sedition are actionable of course. 

Bill V. Neal, 1 Lev. 52. 

Hoio V. Prin, Holt, 652 ; 2 Salk. 694 ; 2 Ld. Eaym. 812 ; 7 

Mod. 107 ; 1 Bro. Pari. C. 64. 
Aston V. Blagrave, 1 Str. 617 ; 8 Mod. 270 ; Fort. 206 ; 2 Ld. 
Eayra. 1369. 

The plaintiff must always aver on the pleadings that 
he was carrying on the profession or ti'ade, or holding 
the office, at the time the words were spoken. Sometimes 
this is admitted by the slander itself, and if so, evidence 
is of course unnecessary in proof of this averment. 
(Yrisarn v. Clement, 2 C.^ & P. 223 ; 3 Bing. 432.) But 
in other cases, unless it is admitted on the pleadings, evi- 
dence must he given at the trial of the special character in 
which plaintiff sues. As a rule, it is sufficient for plain- 
tiff to prove that he was acting in the office or actively 
engaged in the profession or trade without proving any 
appointment thereto, or producing a diploma or other 
formal qualification. Omnia 2^^'csmnuntur rite esse acta. 
{Rutherford v. Evans, 4 C. & P. 79 ; 6 Bing. 451 ; Berry- 
man V. Wise, 4 T. P. 366 ; Canndl v. Curtis, 2 Bing. N. C. 
228.) But there is an exception to this rule where the 
very slander comj^lained of imputes to a medical or legal 
practitioner that he is a quack or impostor, not legally 
qualified for practice : here the plaintiff must be prepared 
to prove his qualification strictly by producing diplomas 
or certificates duly sealed, signed, and stamped. [Cottins 
V. Carnegie, 3 I^. & M. 703 ; 1 Ad. & E. 695 ; Aloises v. 
Thornton, 8 T. E. 303 ; WaMejj v. Healey cS" CooJce, 4 
Exch. 53 ; 18 L. J. Ex. 426.) 

Whether or no the words were spoken of the plaintiff 
in the way of his business, is a question for the jury to 
determine at the trial. [Per Cockburn, C.J., in Ramsdate 
V. Greenacre, 1 F. & F. 61.) There should always be 
an averment in the statement of claim that the words 



/o DEFAMATORY WORDS. 

were so spoken; though, where the words are clearly of 
such a nature as necessarily to affect the plaintiff in his 
office or business, the omission of such an averment will 
not be fatal. {Stanton\. SmiiJi, 2 Ld. Eaym. 1480 ; 2 Str. 
762; Jones v. Littler, 7 M. & W. 423; 10 L. J. Ex. 171.) 

It will be well to deal more particularly with certain special 
offices and professions. 

Persons holdivg any Office of Confidence and Trust. 

Words which impute a want of integrity to any one holding 
an office of confidence or trust, whether an office of profit or 
not, are clearly actionable per se. So if the words employed 
have a natural tendency to cause the plaintiff to be removed 
from his office, as by imputing insufficiency or gross incom- 
petency, or habitual negligence of his duties. But where the 
words merely impute want of ability, without ascribing to the 
plaintiff any wicked or dishonest conduct ; there no action lies 
(at all events, w^here the office is honorary as in the case of a 
justice of the peace). {Per Holt, C. J., in Hoive v. Prin, Holt, 
65.3 ; 2 Salk. G94.) 

As the danger of plaintiff's losing his office is the gist of the 
action, it is essential that plaintiff should hold the office at the 
time the words were spoken. (Per De Grey, C. J., in Onslow v. 
Home, 3 Wils. 188 ; 2 W. Bl. 753, overruling the dictum of 
Pollexfen, C. J., in Walden v. Mitchell, 2 Vent. 266.) 

Illustrations. 

It is actionable without proof of special damage : — 
To accuse a Eoyal Commissioner of taking bribes. 
Moor V. Foster, Cro. Jac. 65. 
Purely V. Staceij, Burr. 2698. 
To say of a justice of the peace, " Mr. Stuckley covereth and hideth 
felonies, and is not worthy to be a Justice of the Peace ; " " for it is against 
liis oath and the office of a Justice of Peace, and a good cause to piut him 
out of the commission." 

StucJdeij V. Bullhead, 4 Eep. 16. 
And see Sir John Harjier v. Beamond, Cro. Jac. 56. 
Sir Miles Fleehcood v. Curl, Cro. Jac. 557 ; Hob. 268. 
To say of a justice of the peace that "he is a Jacobite and for bringing 
in the Prince of Wales and Pojiery ; " for this implies that he is disaffected 



WORDS CONCERNING PERSONS IN OFFICE. 71 

to the established Government and should be removed from office imme- 
diate] v. 

How V. Prin (1702), Holt, 652 ; 7 Mod. 107 ; 2 Ld. Eaym. 812; 
2 Salk. 694. Affirmed in House of Lords suh nom. Prinne v. 
Howe, 1 Brown's Parly. Cases, 64. 
To insinuate that a justice of the peace takes bribes or "perverts justice 
to serve his own turn." 

Ccesar v. Curseny, Cro. Eliz. 30.3. 
Carn v. Osrjood, 1 Lev. 280. 
Alleston v. Moor, Hetl, 167. 
Masham v. Bridges, Cro. Car. 223. 
Isham V. York, Cro. Car. 15. 
Beamond v. Hastings, Cro. Jac. 240. 

Ast07i V. Blagrare, 1 Str. 617 ; 8 Mod. 270 ; 2 Ld. Eaym. 1369 ; 
Fort. 206. 
To say to a churchwarden, " Thou art a cheating knave and hast cheated 
tlie parish of £40." 

Strode v. Holmes (1651), Styles, 338 ; 1 Eoll. Abr. 58. 
Woodruff V. JFeolIey, 1 Vin. Abr. 463. 
To call an escheator, attorney, or other officer of a Court of Eecord, an 
" extortioner." 

Stanley v. Boswell, 1 Eoll. Abr. 55. 
To say of a town- clerk that he hath not performed his office according to 
law. 

Fowell V. Coire, EoUe's Abr. 56. 
Wright v. Aloorhovse, Cro. Eliz. 358. 
To say of a constable :— " He is not worthy the office of constable." 

Taylor v. How, Cro. Eliz. 861 ; 1 A^n. Abr. 464. 
In America it has been held actionable to charge a member of a nominat- 
ing convention of a political party with having been influenced by a bribe. 
Hand v. Winton, 38 N. Y. 122. 
And see Sanderson v. Caldioell, 45 N. Y. 398. 
Dolloway v. Turrell, 26 Wend. (N. Y.), 383. 
Stone yl Cooper, 2 Denio (N. Y.), 293. 
So too in Canada, where the plaintiff was charged Avith being a public 
robber— innuendo, that he, plaintiff, had defrauded the public in his dealings 
with them ; it was held not necessary for plaintiff to aver that he is in any 
office, trade, or employment in which he could have defrauded the public. 
Taylor v. Carr, 3 Up. Can. Q. B. Eep. 306. 

But it is not actionable without proof of special damage :— 
To impute insincerity to a Member of Parliament. 

Onslow V. Home, 3 Wils. 177 ; 2 W. Bl. 750. 
To say of a justice of the peace," He is a fool, an ass, and a beetle-headed 
justice ; " for these are but general terms of abuse and disclose no ground 
for removing the plaintiff from office. 
Bill V. Neal, 1 Lev. 52. 
Sir John Hollis v. Briscov) et ux., Cro. Jac. 58. 



72 DEFAMATORY WORDS. 

To say of a justice of the peace, " He is a logger-headed, a slouch- 
headed, bursen-bellied hound." 

i?. V. ¥arrc, 1 Keb. 629. 
To say of a justice of the peace, " He is a blood-sucker and sucketh 
blood : " " for it cannot be intended what blood he sucketh." 
iiir Christo])her Hilliard v. Constable, Cro. Eliz. 306. 

Clergymen and Ministers. 

Words are actionable if spoken of a beneficed clergyman 
which would not be actionable if spoken of one without cure of 
souls. {Galhvey v. Marshall, 9 Ex. 294 ; 28 L. J. Ex. 78 ; 2 
C. L. E,. 899.) But it does not follow that all words which tend 
to bring a beneficed clergyman into disrepute, or which merely 
impute that he has done something -wTong, are actionable with- 
out special damage. The reason always assigned for this distinc- 
tion between beneficed clergymen and others is that the charge, 
if true, would be ground of degradation or deprivation. {Drake 
V. Dral-e, 1 Roll. Abr. 58 ; Dod v. Rohinson (1648), Aleyn, 63 ; 
Pemberton v. Coils, 10 Q. B. 461 ; 16 L. J. Q. B. 403 ; 11 Jur. 
1011.) The imputation must therefore be such as, if true, 
would tend to prove the plaintiff unfit to continue in his office, 
and therefore tend more or less directly to proceedings being 
taken by the Bishop. If the plaintiff holds any chaplaincy, 
lectureship, or readership, from which he might be removed, 
he will come within the same rules as a beneficed clergyman. 
(Payne v. Beuicmorris, 1 Lev. 248.) But a clergyman Avithout 
any preferment or office stands on the same footing as a dis- 
senting minister, and must prove that some pecuniary damage 
has followed from the speaking of the words. (See Hartley v. 
Herring, 8 T. R. 130.) 

Ill list rat ions. 
It is actionable without proof of special damage : — 

To say of a parson that "he had two wives ; " for though bigamy was 
not made felony till 1603, still in 1588 it Avas "cause of deprivation." 
Nicholson v. Lpie, Cro. Eliz. 94. 
To say that " he is a drunkard, a whoremaster, a common swearer, a 
common liar, and hatii preached false doctrine, and deserves to be degraded ;" 
for " the matters charged are good cause to have him degraded, whereby he 
should lose his freehold." 

Dod v. Rohinson (1648), Aleyn, 63. 

Dr. Sibthorpe's Case, W. Jones, 366 ; Rolle's Abr. 58. 



IVORDS CONCERNING CLERGYMEN. 73 

To say " He preacheth lyes in the pulpit ;" " car ceo est hon cause de depri- 
vation." 

Drake v. Drake (1G52), Roll. Abr. 58 ; 1 Vin. Abr. 463. 
[These cases clearly overrule Parret v. Carjwnter, Noy 64 ; 2 Cro. Eliz. 
502, -wherein it was held that an action could lie only in the spiritual court 
for saying of a parson : — " Parret is an adulterer, and hath had two children 
by the wife of J. S., and I will cause him to be deprived for it." See the 
remarks of Pollock, C.B., 23 L. J. Ex. 80.] 

To say to a parson, " Thou hast made a seditious sermon and moved the 
people to sedition to-day." 

Phili'pi^, B.D. V. Badhij (15S2), cited in Bittridge's Case, 4 Rep. 
19. 
To say of a parson, " He preaches nothing but lies and malice in the 
pulpit ; " for the words are clearly spoken of him in the way of his profes- 
sion. 

Crauden v. JFalden, 3 Lev. 17. 
And see Pocock v. Nash, Comb. 253. 
Musgrave v. Bovey, Str. 946. 
To say to a clergyman," Thou art a dnmkard," is not of itself actionable ; 
but it is submitted that to impute to a clergyman habitual drunkenness, or 
drunkenness whilst engaged in the discharge of his ofiflcial duties, would be 
actionable. 

Cucks V. Starrc, Cro. Car. 285. 
Tighe v. Wicks, 33 Upper Canada Q. B. Rep. 470. 
To charge a clergyman with immorality and misappropriation of the 
sacrament money is clearly actionalde. Damages .£750. 

Highmore v. Earl and Countess of Harrington, 3 C. B. N. S. 
142. 
I And of course to charge a clergyman with having indecently assaulted a 
woman on the highway is actionable. 

Evans v. Gioijn, 5 Q. B. 844. 
To say of a beneficed clergyman that he drugged the wine he gave the 
speaker and so fraudulently induced him to sign a bill of exchange for a 
large amount is actionable without proof of special damage ; but it is not 
actionable merely to say of a beneficed clergyman " he pigeoned me." 

Pemberton v. Colls, 10 Q. B. 461 ] IG L. J. Q. B. 403 ; 11 Jur. 
1011. 
To charge a clergyman with incontinence is not actionable, unless he 
hold some benefice or preferment, or some post of emolument, such as 
preacher, curate , chaplain or lecturer. 

Gallvey v. Marshall, 23 L. J. Ex. 78 ; 9 Exch. 294 ; 2 C. L. R. 

399. 

To say of one who had been a linendraper, but at time of publication 

was a dissenting minister, that he was guilty of fraud and cheating when a 

linendraper, is no slander of the plaintiff in his office of dissenting minister. 

Hopivood V. Thorn, 8 C. B. 293 ; 19 L. J. C. P. 94 ; 14 Jur. 87. 

To say of a bishop that " he is a wicked man " is actionable without 

special damage. Per Scroggs, J., in Townshend v. Dr. Hughes, 2 Mod. 160. 



74 DEFAMATORY WORDS. 

But this is only becai;se the Statute of Scandalum Magnatum, 2 Eich. II. 
st. 1, c. 5, expressly mentions " prelates." See j)o.sf, p. 134, and note to 
10 Q. B. p. 469. 

Ba rristers-at-Lav\ 

It is quite clear that barristers and physicians may sue for 
words touching them in their profession, although their fees 
are honorary. [The loss of a gratuity is special damage : see 
post, c. X.] 

Illustrations. 

The plaintiff was a barrister and gave counsel to divers of the king's 
subjects. The defendant said to J. S. (the plaintiff's father-in-law), con- 
cerning the plaintiff : — " He is a dunce and will get little by the law." 
J. S. replied, " Others have a better opinion of him." The defendant 
answered, " He was never but accounted a dunce in the Middle Temple." 
Held that the words were actionable, though no special damage was alleged. 
Damages, one hundred marks. 

Peanl v. Jones, Cro. Car. 382. 
So it is actionable to say of a barrister : — 
" Thou art no lawyer ; thou canst not make a lease ; thou hast that 
degree without desert ; they are fools who come to thee for law." 
Bemkes v. Allen, Rolle's Abr. 54. 
Or, " He hath as much law as a Jackanapes. (N.B. — The words are not 
" 110 more law than a Jackanapes.") 

Palmer v. Bayer, Owen, 17 ; Cro. Eliz. 342, cited with approval 

in Brokers Case, Moore, 409. 
[And see Caivdrey v. Tetley, Godb. 441, where it is said that had 
the words been, " He has no more icit than a Jackanapes," no 
action would have lain ; wit not being essential to success at 
the bar, according to F. Pollock, 2 Ad. & E. 4.] ; 
Or, " He has deceived his client, and revealed the secrets of his cause." 

Snag v. Graaj, 1 Roll. Abr. 57 ; Co. Entr. 22. 
Or, " He will give vexatious and ill counsel, and stir up a suit and milk 
her purse, and fill his own large pockets." 

King v. Lake, 2 Ventr. 28 ; Hardres, 470. 

Solicitors and Attornies. 

It is actionable without special damage : — 
To say of an attorney, " He is a very base rogue and a cheating knave, 
and doth maintain himself his wife and children by his cheatmg." 
Anon. (1638), Cro. Car. 516. 
See Jenkins v. Smith, Cro. Jac. 586. 
To say of an attorney that " he hath tlie falling sickness ; " for that dis- 
ables him in his profession. 

Tcujlor V. Perr (1607), 1 Eolle's Abr. 44. 
To say of an attorney, " What, does he pretend to be a lawyer I He is no 



WORDS CONCERNING LAWYERS, ETC. 75 

more a lawyer than the devil ; " or any other words imputing gross igno- 
rance of law. 

Day V. Buller, 3 Wils. 59. 

Baker v. Morfuc, Sid. 327 ; 2 Keli. 202 ; ante, p. 08. 

Powell V. Jones, 1 Lev. 297, ante, p. 68. 
To say of an attorney, " He is only an attorney's clerk, and a rogue ; he 
is no attorney," or any words imputing that he is not a fully ([ualified 
practioner. 

Hardicick v. Chandler, Stra. 1138. 
To say of an attorney, " He is an ambidexter," i.e., one who being retained 
by one party in a cause, and having learnt all his secrets, goes over to the 
other side, and acts for the adversary. Such conduct was subject for a qui 
tarn action under an old penal statute : see Eastell's Entries, p. 2, Action 
sur le case vers Attorney, 3. 

Annison v. Blojield, Carter, 214 ; 1 Roll. Abr. 55. 
To impute that he will betray his clients' secrets and overthrow their 
cause. 

Martijn v. BurUngs, Cro. Eliz. 589. 
To charge an attorney with barratry, champerty, or maintenance. 

Boxe V. Barnahy, 1 Roll. Abr. 55 ; Hob. 117. 

Proud V. Hawes, Cro. Eliz. 171 ; Hob. 140, 

Taylor v. Starkey, Cro. Car. 192, 
To say of an attorney :— " He stirreth up suits, and once promised me, 
that if he did not recover in a cause for me, he would take no charges of 
me ; " " because stirring up suits is barratry, and undertaking a suit, no 
purchase no pay, is maintenance." 

Smith V. Andrews, 1 Roll. Abr. 54 ; Hob. 117. 
To assert that an attorney has been guilty of professional misconduct and 
ought to be struck off the rolls. 

Byrchley's Case, 4 Rep. 16. 

Phillips V. Jansen, 2 Esp. 624. 

Wart on v. Gearing, 1 Vict, L. R. C, L. 122. 
But it is not actionable to say of an attorney, " He has defrauded his 
creditors and has been horsewhipped off the course at Doncaster ; " for it is 
no part of his professional duties to attend horse-races, and his creditors are 
not his clients, 

Doyley v. Roberts, 3 Ring. N. C. 835 ; 5 Scott, 40 ; 3 Hodges, 154. 
Nor to abuse him in general terms, such as "cheat," "rogue," or 
" knave ; " though to say, " You cheat your clients," would be actionable. 

Alleston v. Moor, Het. 167. 

And see Bishop v. Latimer, 4 L. T. 775. 

Physicians and Surgeons. 

Any. words imputing to a practising medical man misconduct 
or incapacity in the discbarge of his professional duties is 
actionable per se. 



76 DEFAMATORY WORDS. 

Illustrations. 
Thus it is actionable -u-itlioiat proof of special damage : — 
To accuse any physician, surgeon, accoucheur, midwife, or apothecary, 
with having caused the death of any patient through his ignorance or 
culpable negligence. 

Poc V. Mondford, Cro. Eliz. 620. 
Tuttey V. Aleicin, 11 Mod. 221. 
JFatson v. Vanderlash, Hetl. 71. 
Suuthee v. Denny, 1 Exch. 196 ; 17 L. J. Ex. 151. 
Edsall V. Russell, 4 M. & Gr. 1090 ; 12 L. J. C. P. 4 ; 5 Scott, 
N . E. 801 ; 2 Dowl. N. S. 641 ; 6 Jur. 996. 
To call a practising medical man " a quack-salver," or " an empiric,"' or 
a " mountebank." 

Allen V Eaton, 1 Roll. Abr. 54. 

Goddart v. Haselfoot, 1 Viner's Abr. (S.a.), pi. 12 ; 1 RoU. Abr. 54. 
To say that " his character is so bad, that none of the medical men here 
will meet him." 

Southee v. Denny, 1 Exch. 196. 

But see Clay v. Roberts, 9 Jur. N. S . 580 ; 1 1 W. R. 649 ; 8 L. T. 397. 

Ramadge v. Ryan, 9 Bing. 3.33 ; 2 M. & Sc. 421. 

But it is not actionable : — 

To say of a surgeon, " He did poison the wound of his patient ; " 
without some averment that this was improper treatment of the wound ; 
for else " it might be for the cure of it." 
Suegoe's Case, Hetl. 175. 

Nor to call a person who practises medicine, or surgeon, without full 
legal qualitication, "a quack," or " an impostor ;" for the law only protects 
lawful employments. 

Collins V. Carnegie, 1 A. & E. 695 ; 3 N. & ^L 703. 

Nor to charge a physician with adultery unconnected with his profes- 
sional conduct. It would be otherwise if he had been accused of seducing, 
or conmiitting adultery with, one of his patients. 

Ayre v. Craven, 2 A. & E. 2 ; 4 N. & M. 220. 

Dawes intended to employ the plaintifl", a surgeon and accoucheur, at his 
wife's approaching confinement ; but the defendant told Dawes that the 
plaintilf 's female servant had had a child by the plaintiff : Dawes conse- 
quently decided not to employ the plaintiff : Dawes told his mother and 
his wife's sister what defendant had said ; and consequently the plaintift"s 
practice fell off considerably among Dawes' friends and acqiiaintance and 
others. The fee for one confinement was a gviinea. Held that the action 
lay, special damage being proved ; that the plaintiff" was entitled to more 
than the one guinea damages ; that the jury should give him such sum 
as they considered Dawes' custom was worth to him ; but that the jury 
clearly could not in this action give him anything for the general decline 
of his business. 

Dixon v. Smith, 5 H. & N. 450 ; 29 L. J. Ex. 125. 



I 



WORDS CONCERNING TRADERS. 77 

So, to impute incompetency to any one j^ractising an art, as a 
dentist, a schoolmaster, a land surveyor, or an architect, is 
actionable per se. 

Illustrations. 

Thu3 it is actionable without proof of special damage : — 

To say of a Bchoolmaster, " Put not your son to him, for he will come 
away as very a dunce as he went." 

Watson V. Vanderlash, Hetl. 71. 
Or to accuse a schoolmaster of habitual drunkenness. 

Erandrick v. Johnson, 1 Vict. L. E. C. L. 306. 
Or to say of an architect engaged to restore a church, that he has no ex- 
perience in church work. 

Botierill and another y. TFTiijtehead, 41 L. T. 588. 
Or to say of a land surveyor, in the way of his trade, " Thou art a cozener 
and a cheating knave, and that I can prove." 

London v. Eastgate, 2 Rolle's Eep. 72. 
But it has actually been held not actionable to impute prostitution to a 
schoolmistress. 

TFetherhead v. Armitagc, 2 Lev. 233 ; 2 ShoAV. 18 ; Freem. 277 ; 

3 Salk. 328. 
Per Twisden, J., in Wharton v. Brook, Ventr. 21 ; but see the 
remarks of Lord Deuman, C. J., in Ayre v. Craven, 2 A. & E. 
2; 4N. & M. 220. 

Traders. 

So if the plaintiff carry on any trade recognised by the law, 
or be engaged in any lawful employment, however humble, an 
action lies for any words which affect him in the way of such 
trade or employment, and prejudice him therein. But the 
words must relate to his employment, and " touch " him 
therein. 

Illustrations. 

Thus, it is actionable without proof of special damage : — 

To say of a clerk or servant that he had " cozened his master." 
Seaman v. Bigg, Cro. Car. 480. 
Beignald's Case (1640), Cro. Car. 563. 
To say of a servant girl that she had had a miscarriage, and had lost her 
place in consequence. 

Connors v. Justice, 13 Ir. C. L. R. 451. 
To say of a gamekeeper that he trapped three foxes ; for that would be 
clearly a breach of his duties as gamekeeper. 

Foulger v. Newcomb, L. R. 2 Ex. 327 ; 36 L. J. Ex. 169 ; 15 
AV. R, 1181 ; 16 L. T. 595. 



78 DEFAMATORY WORDS. 

To say to an innkeeper : — " Tliy house is infected with the pox, and thy 
wife was laid of the pox ; " for even if sniall-pox only was meant, still " it 
was a discredit to the phiintiiF, and guests would not resort " to his house. 
Damages £50, 

Levefs Case, Cro. Eliz. 289. 

And see the remarks of Kelly, C. B., in Riding v. Smith, 1 Ex. 
D. 94 ; 45 L. J. Ex. 281 ; 24 W. R. 487 ; 34 L. T. 500. 

But it is not actionalile per se : — 

To say of a livery-stalde keeper : — " You are a regular prover under 
bankruptcies, a regular bankrupt maker ; " for it is not a charge against 
him in the way of his trade. 

Angle v. Alexamkr, 7 Bing. 119 ; 1 Cr. & J. 143 ; 4 M. & P. 
870 ; 1 Tyrw. 9. 
Nor to say to a clerk to a gas-company :— '• You are a fellow, a disgrace 
to the town, unfit to hold your situation for your conduct with whores. " 
Lumhj V. Allday, 1 C. & J. 301 ; 1 Tyrw. 217. 
And see James v. Brool:, 9 Q. B. 7 ; 16 L. J. Q. B. 17 ; 10 Jur. 
541. 
Nor to impute to a staymaker that his trade is maintained by the prosti- 
tution of his shopwoman. 

Brayne v. Cooper, 5 M. & W. 249. 

But see Riding v. Smith, 1 Ex. D. 91 ; 45 L. J. Ex. 281 ; 24 
W. E. 487 ; 34 L. T. 500. 

The law ouards most carefully tlie credit of all merchants 
and traders ; any imputation on their solvency, any suggestion 
that they are in pecuniary difficulties, or are attempting to 
evade the operation of any Bankruptcy Act is therefore 
actionable per se. 

Ill list fations. 

Thus it is actionable without proof of special damage : — 

To impeach tlie credit of any merchant or tradesman by imputing to 
him IjanLruptcy or insolvency, either past, present or future. 
Johnson v. Lenunon, 2 Rolle's Rep. 144. 
Thompson v. Tu-enge, 2 Rolle's Rep. 433. 
Vivian v. JFillet, Sir Thomas Raymond, 207 ; 3 Salk. 326. 
Stanton v. Smith, Ld. Raymond, 1480 ; 2 Str. 762. 
JVhittington v. Gladirin, 5 B. & C. 180 ; 2 C. & P. 146. 
Robinson v. Marchant, 7 Q. B. 918 ; 15 L. J. Q. B. 134 ; 10 Jur. 

156. 
Harrison v. Bevington, 8 C. & P. 708. 
Gostling v. BrooU, 2 F. & F. 76. 
Bromi V. Smith, 13 C. B. 596 ; 22 L. J. C. P. 151 ; 17 Jur. 807 ; 

1 C. L. R. 4. 



WORDS CONCERNING TRADERS. 79 

To say to a tailor, " I heard you were run away," sr. from your creditors. 

Davis V. Levns, 7 T. R. 17. 

And see Dobson v. Thornistone, 3 Mod. 112. 

Chapman v. Laviphirc, 3 Mod. 155. 

Arne v. Johnson, 10 Mod. 111. 

Harrison v. Thornhorongh, 10 Mod. 196 ; Gilb. Gas. 114. 
To say of a brewer that he had been arrested for debt. And this 
although no express reference to his trade was made at time of publication, 
for such words must necessarily affect his credit therein. 

Jones V. Littler, 7 M. & W. 423 ; 10 L. J. Ex. 171. 
To assert that the plaintiff had once been bankrupt in another place, 
when carrying on another trade ; for that may still affect him here in his 
present trade. 

Leycroft v. Dunker, Cro. Car. 317. 

Hall V. Smith, 1 M. & S. 287. 

Fujgins v. Cogswell, 3 M. & S. 3G9. 
To say of any trader : — " He is not able to pay his debts." 

Drake v. Hill, Sir T. Raym. 184; 2 Keble,549 ; 1 Lev. 276 ; Sid. 424. 

Hooker v. Tucker, Holt, 39. 

Morris v. Langdale, 2 Bos. & Pull. 284. 

Orpwood V. Barkes (vel Parkes), 4 Bing. 261 ; 12 Moore, 492. 
To impute insolvency to an innkeejier, even though at that date inn- 
keepers were not subject to the bankruptcy laws. 

Whittington v. Gladinn, 5 B. & C. ISO ; 2 C. & P. 146. 

Southani v. Allen, Sir T. Raym. 231. 

So if the defendant's words impute to tliej^laintiff dishonesty 
and fraud in the conduct of his trade, such as knowingly selling 
inferior articles as superior, or wilfully adulterating his wares ; 
they will be actionable 2^^^' se. Though all bond fide complaints 
by a customer of the goods supplied to him are of course 
privileged. (Crisp v. GUI, 29 L. T. (Old S.), 82 ; Oddy v. 
Lord Geo. Paulet, 4 F. & F. 100.9.) If the words merely 
impugn the goods the plaintiff sells, they are not actionable 
unless they fall within the rules relating to Slander of Title, 
post, c. V. ; for they are but an attack oa a thing, not on a 
person. {Fenii v. Dixe (1G38), 1 Roll. Abr. 58 ; Evans v. 
Harlow, 5 Q. B. (324 ; l:} L. J. Q. B. 120 ; Hannan v. Delany, 
2 Str. 898; Fitz. ]21; 1 Barnard. 289, 438.) But often an 
attack on ^v commodity may be also an indirect attack upon its 
vendor ; eg. if fraud or dishonesty be imputed to him in offer- 
ing it for sale. (See Jenner v. A'Becl-ett, L. K 7 Q. B. 11 ; 41 
L. J. Q. B. 14 ; 20 W. R 181 ; 25 L. T. 4G4 ; Barnet v. Wells 
(1700), 12 Mod. 420 ; Clark v. Freeman, 11 Beav. 112 ; 17 L. J. 
Oh. 142; 12 Jur. 149.) 



8o DEFAMATORY WORDS. 

Illustrations. 

Thus it is actionable without proof of special damage : — 
To say of a trader : — " He is a cheating knave, and keeps a false debt- 
book." 

Crawfoot v. Dale, 1 Vent. 263 ; 3 Salk. 327. 
Overruling Todd v. Hastings, 2 Saund. 307. 
Or that he uses false weights or measures. 

Griffiths V. Leivis, 7 Q. B. 61 ; 14 L. J. Q. B. 197 ; 9 Jur. 370 ; 

8 Q. B. 841 ; 15 L. J. Q. B. 249 ; 10 Jur. 711. 
Bray v. Ham, 1 Brownlow & Golds. 4. 
Stober v. Green, ib, 5. 
Prior V. Wilson, 1 C. B. N. S. 95. 
To say to a cornfactor, " You are a rogue and a swindling rascal, you 
delivered me 100 bushels of oats, worse by 6s. a bushel than I bargained 

for." 

Thomas v. Jackson, 3 Bing. 104 ; 10 Moore, 425. 
To say of a tradesman that he adulterates the goods he sells. 

Jesson V. Hayes (1636), Roll. Abr. 63. 
To say of a contractor : — "He used the old materials," when his contract 
was for new, is actionable, with proper innuendoes. 

Baboneau v. Farrell, 15 C. B. 360 ; 24 L. J. C. P. 9 ; 1 Jur. 
N. S. 114; 3C. L. R. 142. 

Sir E. Greenfield's Case, Mar. 82 ; 1 Viner's Abr. 465. 

See Smith v. Mathews, 1 Moo. & Rob. 151. 
To say of an auctioneer or appraiser who had valued goods for the 
defendant, " He is a damned rascal, he has cheated me out of £100 on the 
valuation." 

Bryant v. Loxton, 1 1 Moore, 344, 

Bamsdale v. Greenacre, 1 F. & F. 61, ante, p. 67. 
To say of a butcher that he changed the lamb bought of him for a coarse 
piece of mutton. 

Crisj) V. Gill, 29 L. T. Old Series, 82. 

Eice V. Pigeon, Coml). 161. 
But to call a tradesman "a rogue," or "a cheat," or " a cozener," is not 
actionable, unless it can be shown that the words refer to his trade. To 
impute distinctly that he cheats or cozens in liis trade is actionable. 

Johns V. Gittings, Cro. Eliz. 239. 

Cotes V. Ketle, Cro. Jac. 204. 

Terry v. HoojKr, 1 Lev. 115. 

Savage v. Eobery, 5 Mod. 398 ; 2 Salk. 694. 

Surman v. Shelleto, 3 Burr. 1688. 

Bromefield v. SnoJce, 12 Mod. 307. 

Savile v. Jardine, 2 H. Bl. 531. 

Lancaster v. French, 2 Stra. 797. 

Davis V. Miller et ux,, 2 Stra. 1169. 

Fellou-es v. Hunter, 20 Up. Can. Q. B. 382. 

Brady v. Youlden, Melbourne Argus R., an 



WORDS CONCERNING TRADERS. 8i 

[N.B. — Lancaster v. French aiipears to go a little t'lirtlier tlian the other 
cases cited : but if so, it must be taken to be so far overruled by them.] 

So to say to a pork butcher, "Who stole Fraser's pigs? You did, you 
bloody thief, ami I can prove it — you poisoned -them with mustard and 
brimstone," was held not actionable (the jury having found that the words 
were not intended to impute felony) ; for there was nothing to show that 
they were spoken of the plaintiff in relation to his trade. 
Sibley V. Tomlins, 4 Tyrwhitt, 90. 

So to say of a grocer, " His shop is in the market," is not actionable, in 
the primary sense of the Avords at all events. 

Rnd v. Tutnell, 29 W. R. 172 ; 43 L. T. 507. 

It must be averred and proved that the plaiutiff carried on 
his trade at the time the words were spoken ; else the words 
cannot be spoken of him in the way of such trade. Bellamy v. 
Burch, 16 M. & W. 590. Moreover the trade or employment 
must be one recognised by the law as a legitimate means of 
earning one's living. 

Illiidratlons. 

A stock-jobber could not sue for words spoken of him in the way of his 
trade, so long as that trade was illegal within the 7 Geo. II. c. 8, s. 1 (Sir 
John Barnard's Act ; now repealed by 23 & 24 Vict. c. 28.) 
Morris v. Langdale, 2 Bos. & Pull. 284. 
Collins V. Carnegie, 1 A. & E. C95 ; 3 N. & M. 703. 
If the plaintiff avers that he carries on two trades, it will be sufficient to 
prove that he carries on one, if the words can affect him in that one. 
Figijins v. Cogswell, 3 M. &, S. 369. 
Hull V. Hmitli, 1 M. & S. 287. 
Where insolvency is imjmted to one member of a firm, either he or 
the firm may sue, for it is a reflection on the credit of both. 
Harrison v. Bevington, 8 C. & P. 708. 
Cook and another v. Batchellor, 3 Bos. & Pul. 150. 
Foster and others v. Lawson, 3 Bing. 452 ; 1 1 Moore, 360. 
A married woman, carrying on a separate trade according to the custom 
of London, or within the meaning of the Married Women's Property Act, 
1870, s. 1, may by s. 11 sue without joining her husband for any tort 
affecting such separate trade or her credit therein. 

Summers v. City Bank, L. R. 9 C. P. 580 ; 43 L. J, C. P. 261. 



82 DEFAMATORY WORDS. 



IV. Words actionable only lij reason of special 
damage. 

1^0 otlier words are actionable without proof of special 
damage. Thus, to accuse a man of fi-aud, dishonesty, 
immorality, or any vicious and dishonourable (but not 
criminal) conduct, is not actionable, unless it has pro- 
duced as its natui'al and necessary consequence some 
pecuniary loss to the plaintiff. 

Illustrations. 

Thus the following words are not actionable without proof of special 
damage : — 

" Thou art a scurvey bad fellow." 

Fisher v, Atkinson, 1 Roll. Abr. 43. 
" A rogue, a villain, and a varlet," (for these, and words of the like kind, 
are to be considered as " words of heat.") 

Fer Cur. in Stanhope v. Blifh, 4 Rep. 15. 
" A runagate rogue." 

Cockaine v. Hopkins, 2 Lev. 214. 
" A common filcher." 

Goodah v. Castle, Cro. Eliz. 554. 
" A cozening knave." 

Brunkard v. Segar, Cro. Jac. 427 ; Hutt. 13 ; 1 Yin. Abr. 427. 
" Welcher." 

Blackman v. Bryant, 27 L. T. 491. 
" You are a swindler." 

Savile v. Jardine, 2 H, & Bl. 531. 

Black v. Hunt, 2 L. R. Ir. 10. 
" He is a rogue and a swindler ; I know enough about him to hang 
him." 

TFard v. IFeeks, 7 Bing. 211 ; 4 ]\I. & P. 796. 
" He is a rogue, and has cheated his brother-in-law ot upwards of 
£2000." 

Hopwood y. Thorn, 8 C. B. 293 ; 19 L. J. C. P. 94 ; 14 Jur. 87. 
To say " You cheat everybody, you cheated me, you cheated Mr. Saun- 



WORDS IMPUTING IMMORALITY. 83 

deis," is not actionable unless it be spoken of the plaintiff in the way of his 
profession or trade. 

Davis V. Miller et ux., 2 Str. 1169. 
To call a man a " blackleg " is not actionaljle unless it can be shown that 
word was understood by the bystanders to mean "a cheating gambler 
liable to be prosecuted as such." 

Bar7iett v. Allen, 3 H. & N. 376 ; 4 Jur. N. S. 488 ; 27 L. J. 
Ex. 412 ; 1 F. & F. 125. 
In an American case the difficulty caused by absence of special damage 
was surmounted by suing in trespass : — A man who, instead of walking 
along the street, stops on the pavement opjjosite the plaintiff 's freehold 
shop using insulting and abusive language towards the plaintiff, and persists 
in such conduct though requested to move on, is a trespasser, and the jury 
in an action of trespass may award substantial damages, though no special 
damages be proved, and although the abusive words be not actionable ^:)n- 
sc ; Adams v. Rivers, 11 Barbour (New York) Reports, 390. For as one of 
the public he was only entitled to use the highway for passing and repassing. 
Dovastou V. Payne, 2 Sm. Lg. Cas. (8th ed.), p. 142. And evidence of his 
language while committing a trespass is properly admitted to show in what 
spirit the act was done. Merest v. Harvey, 5 Taunt. 442. " AVhere a 
wruugful act is accompanied bywords of contumely and abuse, the jury 
are warranted in taking that into consideration and giving retributory 
damages." Per Byles, J., in 

Bell v. Midland By. Co., 10 C. B. N. S. 287, 308 ; 30 L. J. C. P. 
273 ; 9 W. R. G12 ; 4 L. T. 293. 

Words imputing ininioral conduct, profligacy, adultery, 
&c., GA^en when spoken of one liolding an office or carry- 
ing on a profession or business, will not be actionable, 
unless they *' touch him " in that office, profession, or 
business. Thus, if alleged of a beneficed clergyman they 
will be actionable, because if the charge 'were true it 
would be ground for degradation or deprivation, as it 
would prove him unfit to hold his benefice or to continue in 
the active duties of his profession. ( Gallwey v. Marshall., 
!) Ex. 294 ; 23 L. J. Ex. 78.) But if the same words 
were spoken of a trader, or even of a physician or a 
schoolmistress, they would not be actionable without 
proof of special damage, as they do not necessarily afl'ect 
tlie plaintiff in relation to his trade or profession. The 
imputation must be connected with the professional 

duties of the plaintiff. 

a 2 



DEFAMATORY WORDS. 



Illustrations. 



Words imputing adultery to fi physician were laid to Lave been spoken 
" of him iu his profession," but there Avas nothing in the declaration to 
connect the imputation with the plaintiff's jirofessional conduct. Held that 
the words were not actionable without special damage. 
Ayre v. Craven, 2 A. & E. 2 ; 4 N. & M. 220. 
To imj^ute prostitution to a schoolmistress is iiot actionable. Per 
Twisden, J., in 

Wharton v. Brook, Ventr. 21. 

JFetherhead v. Armitage, 2 Lev. 233 ; 2 Show. 18 ; Freem. 277 ; 
3 Salk. 328. 
And words imputing immorality to a trader or his clerk are not actionable 
without sjiecial damage. 

Lumby v. AUday, 1 Or. & J. 301 ; 1 Tyrwh. 217. 
Nor are woids imputing to a staymaker that his trade is maintained by 
the prostitution of his shopwoman. 

Brayne v. Coo2)cr, 5 M. & W. 249. 

But now see Riding v. Smith, 1 Ex. D. 91 ; 45 L. J. Ex. 281 ; 
24 W. R. 487 ; 34 L. T. 500. 



Words imputing imcliastity or adultery to a woman, 
married or unmarried, however gross and injurious they 
may be, are not actionable ; unless she can prove that 
they have directly caused her special damage. 

As to what constitutes special damage, see the 
stringent rules laid down in c. X., jmst, pp. 308 — 333. 

The only exception is in the case of actions brought in the 
local Courts of the city of London, the borough of Southwark 
(Sid. 97), and it is said of the city of Bristol, for words spoken 
within the jurisdiction of those Courts. It was formerly the 
custom in those localities to cart and whip whores, tingling a 
basin before them. Hence to call a woman " whore " or 
" strumpet " {Cook v. Wingjield, 1 Str. oo5) or "bawd " (1 Yin. 
Abr. 8.96) or her husband a "cuckold" {Vicars v. Worth, 1 
Str. 471) was supposed to be an imputation of a criminal 
offence to the female plaintiff and therefore actionable. But 
no action will lie in any of the superior Courts at Westminster 
for such words, since the custom has never been certified by 
the Recorder and must therefore be strictly proved. It was 
found impossible to prove such a custom in 1782, and it would 



WORDS IMPUTING UNCHASTITY. 85 

be still more difficult to do so in the present day. The City 
Courts used formerly to take judicial notice of their own 
custom ; but I doubt if they would do so now, the custom 
being entirely extinct. See Oxford et ux. v. Cross (1599), 4 
Rep. 18 ; Hassell v. Capcot (1639), 1 Vin. Abr. 395; 1 Roll. 
Abr. 36 ; Cook v. Wingfield, 1 Str. 555 ; Watson v. Clerke, 
Comb. 138, 139 ; Stainton et ux. v. Jones, 2 Selw. N. P. 1205 
(13th ed.) ; notes [14] and [96] to 1 Dougl. by Frere, p. 380 ; 
Theyer v. Eastwick, 4 Burr. 2032 ; Brand and vnfe v. Roberts 
and tvife, 4 Burr. 2418 ; Rily v. Lewis, 1 Vin. Abr. 396 ; Vicars 
V. Worth, 1 Str. 471 ; Hodgkins et ux. v. Corbet et ux. 1 Str, 
545 ; Roberts v. Herbert, Sid. 97 ; S. C. nom. Cans v. Roberts, 
1 Keble, 418. 

Illustrations. 

To say of a young woman that she had a bastard is not actionable without 
proof of special damage ; " because it is a spiritual defamation, punishable 
in the spiritual court." 

Per Holt, C.J., in Ogden r. Turner, Holt, 40 ; 6 Mod. 104 ; 2 
Salk. 696. 
To call a woman " a whore," or "a strumpet " is not actionable, except by 
special custom if the action be tried in the cities of London and Bristol. 
" To maintain actions for such brabling words is against law." 
Oxford et ux. v. Cross (1599), 4 Rep. 18. 
Gascoigne et ux. v. Ambler, 2 Ld. Raym. 1004, 
Poiver V. Shaw, 1 Wils. 62. 
It is not actionable to call a woman a "bawd," 

Hollingshead's Case (1632), Cro. Car. 229. 
Hixe V. HoUingshed (1632), Cro. Car. 261. 
unless it be in the City of London. 

Eily V. Lewis (1640), 1 Vin. Abr. 396. 
The words " You are livijig by imposture ; you used to walk St. Paul's 
Churchyard for a living," — spoken of a woman with the intention of im- 
puting that she was a swindler and a prostitute, — are not actionable without 
special damage. 

TFilby v. FAston, 8 C. B. 142 ; 18 L. J. C. P. 320 ; 13 Jur. 706; 

7 T). & L. 143. 

So to say of a married man tliat he lias " had two bastards and should 

liave kept them '' is not actionable, though it is averred that by reason of 

such words " discord arose between him and his wife, and they were likely 

to have been divorced." 

Barmund's Case, Cro. Jac. 473. 

Halter v. Proume, Cro. Car. 436 ; 1 Roll. Abr. 397. 



c6 DEFAMATORY WORDS. 

Tlie defendant told a married man that his wife was " a notorious liar " 
and " an infamous wretch," and had been all but seduced by Dr. C. of 
Roscommon before her marriage. The husband consequently refused to 
live with her any longer. Held, no action lay. 

Lyndi v. Knirjlit and wife, 9 H. L. C. 577 ; 8 Jur. N. S. 724 ; 
5 L, T. 291. 
Where the defendant asserted that a married woman was guilty of adul- 
tery, and she was consequently expelled from the congregation and bible 
society of her religious sect, and was thus prevented from obtaining a certi- 
ficate, without which she could not become a member of any similar 
society. Held, no action lay, 

Roberts and mfe v. Roberts, 5 B. & S. 384 ; 33 L. J. Q. B. 249 ; 
10 Jur. N. S. 1027 ; 12 W. R. 909 ; 10 L. T. 602. 
[It does not appear that the case as to excommunication, Barnabas v. 
Traunter, 1 Vin. Abr. 396, ante, p. 59, was cited to the Court,] 

The defendant falselj" imputed incontinence to a married woman. In 
consequence of his words she lost the society and friendship of her neigh- 
bours, and became seriously ill and unable to attend to her affairs and 
business, and her husband incurred expense in curing her, and lost the 
society and assistance of his wife in his domestic affairs. Held that neither 
husband nor wife had any cause of action. 

Allsop and wife v. Allso2y, 5 H. & N. 534 ; 29 L. J. Ex. 315 ; 

8 W. R. 449 ; 6 Jur. N. S. 433 ; 36 L. T. 0. S. 290. 
Riding v. Smith, 1 Ex. D. 91 ; 45 L. J. Ex. 281 ; 24 W. R. 
487 ; 34 L. T. 500, 



Our law on tliis point lias often been denounced by learned 
Judges. " I may lament the unsatisfactory state of our law 
according to wliicli the imputation by words however gross, on 
an occasion however public, upon the cliastity of a modest 
matron or a pure virgin, is not actionable without proof that it 
has actually produced special temporal damage to her," says Lord 
Campbell, L. C, in Lynch v. Knight and wife, 9 H. L. C. 593 ; 
5 L. T. 291. "Instead of the word 'unsatisfactory' I should 
substitute the word ' barbarous,' " says Lord Brougham, p. 594. 
See also the remarks of Willes, C. J., in Jones v. Heme, 2 
Wils. 87 ; and of Cockburn, C. J., Compton and Blackburn, JJ., 
in Rohetis and iv'tfe v. Roberts, 5 B. i^ S. 384 ; 33 L. J. Q. B. 
249 ; 10 Jur. N. S. 1027 ; 12 W. B. 909 ; 10 L. T. 602. 

Two explanations may be assigned for the undesirable state 
of our law on this point. (1.) In the days when our common 
law was formed, every one was much more accustomed than 



WORDS IMPUTING UNCHASTITY. 87 

they are at present to such gross language, and epithets such 
as " whore " Avere freely used as general terms of abuse without 
seriously imputing any specific act of unchastity. (2.) The 
spiritual Courts had jurisdiction over such charges, and though 
they could not award damages to the plaintiff, they could 
punish the defendant for the benefit of his soul ; but all actions 
in the ecclesiastical Courts for defamatory Avords were abolished 
by the 18 »Sz; 19 Vict. c. 41, and no attempt was made to sub- 
stitute any remedy in the ordinary courts of law. In Scotland 
and in many of the States of America a verbal imputation of 
unchastity is actionable without proof of special damage. 

The hardship is increased by the rules relating to special 
damage, which are peculiarly stringent in the case of a married 
Avoman. That her husband has sustained special damage in 
consequence of the Avords Avill not avail for her. And unless she 
carry on a separate trade or business of her own under the 
Married Women's Property Act, 1870, it is almost impossible for 
her to sustain any special damage to herself, for all her property 
is in laAV her husband's. That she loses the society of her friends 
is no special damage ; and in Lynch v. Knight and ivife, 9 H. 
L. C. 577, Lord Wensleydale denied that the loss of the con- 
sortium of her husband could constitute special damage. The 
only object of insisting on proof of special damage is to secur'e 
that the plaintiff's reputation has in fact been seriously impaired. 
And in many of these cases it is clear that this was so. What 
more convincing proof of loss of reputation could be adduced 
than the fact proved by Mrs. Roberts that she Avas expelled 
from the congregation, and not alloAved to continue a member 
of her religious sect. Yet in that case it Avas held no action lay. 
Surely it is high time that some alteration should be made in 
our law on this point. 

All words, if published without lawful occasion, are 
actionable, if they have in fact produced special damage 
to the plaintii!, such as the law does not deem too 
remote. "Any words by which a party has a special 
damage " are actionable. (Comyn's Digest, Action upon 
the Case for Defamation, D. 30.) "Undoubtedly all 



88 DEFAMATORY WORDS. 

words arc actionable, if a special damage follows." (Per 
Heatli, J., in Moore v. Meagher^ 1 Tannt. 44.) 

It is usual to qualify the generality of the above rule by 
adding a proviso, " provided the words themselves be in their 
nature defamatory." But as "defamatory words" have at the 
commencement of this chapter been defined as " words which in 
any given case have appreciably injured the plaintiff's reputa- 
tion," I do not like to use the phrase "words in their nature 
defamatory," It is not defamatory to say of a pork butcher, 
" he knows no law : he cannot draw a lease ; " it is defamatory 
so to speak of a solicitor. You cannot therefore lay down a 
'priori any hard and fast rule as to which words are in their 
nature defamatory, and which are not so. Each case must 
depend on its own circumstances. 

No doubt in an action of defamation the words must be de- 
famatory. If that be all that is meant by the above proviso, I 
will gladly incorporate it into the above rule together with my 
definition of words defamatory : when the rule would run 
thus : — " All words, if published without lawful occasion, are 
actionable, if it be proved, by evidence of special damage not 
too remote, that they have in fact injured the plaintiff's re- 
putation ; and in such cases the action is called an action of de- 
famation " (using that phrase to include both libel and slander). 
The converse of this rule will be "No words can be the subject 
of an action of defamation, however maliciously published, and 
although they have caused actual damage to the plaintiff, 
unless it is also proved that the plaintiff's reputation has in 
fact been thereby injured." 

But though an action of defamation will not lie, it by no 
means follows that some other action will not lie. Wherever a 
defendant speaks words of whatever nature, maliciously in- 
tending to do some injury to the plaintiff thereby, and the 
words have their desired effect and do actually produce damage 
to the plaintiff, here there is that actionable " concurrence 
of loss and injury," spoken of by Lord Campbell, L. C, 
in Lynch v. Knight and wife, 9 H. L. C. 589 ; and an 
ordinary action on the case will lie, if not an action of libel 
or slander. 



WORDS CAUSING SPECIAL DAMAGE. 89 

The head-note in Kelly v. Partington, 5 B. & Ad. 045, is 
the direct traverse of the above proposition : — " Held that the 
words were not defamatory in their nature, and therefore not 
actionable, even though followed by special damage." But 
Kelly V. Partington is, if I may say so, a silly case. It turned 
on a slip in the pleadings. The defendant said of the plaintiff, 
"She secreted Is. Gc?. under the till," and then added signi- 
ficantly "These are not times to be robbed." This was clearly 
an insinuation of felony. Verdict for the plaintiff, damages l.s. 
On taxation the master declined to allow the plaintiff more 
costs than damages. The plaintiff's counsel, Sir John Camp- 
bell, S. G., thereupon argued that the second count was not 
actionable without proof of special damage ; and succeeded in 
getting a rule for his costs. For it turned out that the pleader 
had run the words together so that it appeared on the record 
that the charge against the plaintiff was this : " She secreted 
Is. Gc?. under the till ; stating, these are not times to be 
robbed." There Avas no innuendo stating whose money it was, 
but there was an allegation of special damage that in conse- 
sequence one Stenning had refused to take the plaintiff into his 
service. The Court was therefore pleased to take the Avords 
as spoken in praise of the plaintiff, i.e., as importing merely 
that the plaintiff exercised great caution and was very careful 
of her own money, even of small amounts of it. Sir James 
Scarlett took advantage of this flaw and succeeded in arresting 
judgment. For it followed, of course, that Stenning's refusal to 
take the plaintiff into his service, because the defendant had 
praised her, was unreasonable, and not the natural or necessary 
consequence of the defendant's words. And the only decision 
in the case was that the special damage was too remote ; and 
a very harsh decision this seems to be, in these days when 
pleadings are so easily amended. The Solicitor General could not 
now go back and argue that the words amounted to a charge 
of felony and were actionable per se ; for on the argument of 
the previous rule he had been only too successful in proving 
that the words were not actionable without proof of special 
damage. He was driven therefore to contend that, if praise 
produced special damage, praise was actionable ; an argument 
with v/hich the Court appeared much amused. Littledale, J., 



90 DEFAMATORY WORDS, 

puts him a case (p. G48), " Suppose a man had a relation of a 
penurious disposition, and a third person knowing that it would 
injure him in the opinion of that relation, tells the latter a 
generous act which the first had done, by which he induces the 
relation not to leave him money, would that be actionable?" 
And Sir John Campbell answers, " If the words were spoken 
falsely with intent to injure, they would be actionable." And 
surely he is right ; though one sees the strange position 
the plaintiff would be compelled to adopt. He would have 
to come forward in Court and declare, " I am not generous, 
I am really very mean." It would be difficult also to prove 
the intent with which the words were spoken. But if a 
malicious intent be clear, the damage is not too remote, 
for the defendant contemplated it ; and the speaking of the 
words was wrongful because done maliciously, falsely, and with 
intent to injure the plaintiff; so here is et daTnnuin et injuria. 
Lord Denman's judgment, be it observed, turned almost en- 
tirely on the absence of any innuendo ; that of Taunton, J., on 
the remoteness of the damage ; while Littledale and Patte- 
son, J J., concurred in a proposition, which, with all submission, 
I cannot understand, that " to make the speaking of the words 
wrongful, they must in their nature be defamatory," p. 651. If 
in a small country town where political or religious feeling runs 
very high, I maliciously disseminate a report, false to my know- 
ledge, that a certain tradesman is a radical or a dissenter, 
knowing that the result will be to drive away his customers, and 
intending and desiring that result, then, if such result follows, 
surely I am liable for damages in an action on the case, if not 
in an action of slander. And yet such Avords are not in their 
nature defamatory ; for many, I understand, glory in such titles. 
This decision (or dictum) in Kelly v. Partington, was approved 
and adopted in Sheahan v. Ahearne, 9 Ir. Rep. C. L. 412 
(1875). But there, too, this was not the real ground of the 
judgment of the Court ; their decision turned on a variance be- 
tween the words as pleaded and the evidence at the trial. In 
Miller V. David, L. R. 9 C. P. 126 ; 43 L. J. C. P. 84 ; 22 W. R. 
332 ; 30 L. T. 58, on the other hand, the Court treat the point 
as still, at least, an open question : — " It is not necessary to con- 
sider the question which was suggested on the argument, 



WORDS CAUSING SPECIAL DAMAGE. 91 

whether words not in themselves actionable or defamatory, 
spoken under circumstances and to persons likely to create 
damage to the subject of the words, are, when the damage 
follows, ground of action. The judgment of Lord Wen sleydale 
in Lynch v. Knight and luife, 9 H. L. C. 600, appears in favour 
of the affirmative of this question. But it is not necessary for 
us, for the reasons given, to express any opinion upon it." 
Again, in Western Counties Manure^Co.\v. Latues Chemical 
Manure Co., L. R 9 Exch. 223 ; 43 L. J. Ex. 171 ; Pollock, B., 
cites with approval and acts upon " the general rule laid down 
as to such actions in Comyns' Digest, where it is said that an 
action lies when special damage is shown." So, too, in Riding 
V. Smith, 1 Ex. Div. 96, Huddleston, B., says, "The declaration 
when amended would stand thus : that the plaintiff carried on 
business as a grocer and draper, and was assisted in the conduct 
of his business by his wife, and that the defendant falsely and 
maliciously published of the plaintiff's wife in relation to the 
business that she had committed adultery, whereby the plaintiff 
Avas injured in his business and sustained special damage. I 
think it clear that on a declaration so framed an action might 
be maintained." The name of the wife as a party to the action 
had been previously struck out ; and the words were not de- 
famatory of the husband, for they in no way refer to him. And 
in the same case (p. 94), Kelly, C. B., says, "Here the statement 
was that the wife of the plaintiff was guilty of adultery, and it 
is the natural consequence of such a statement that persons 
should cease to resort to the shop. Supposing the statement 
made not to be slander, but something else calculated to injure 
the shopkeeper in the way of his trade, as for instance a state- 
ment that one of his shopmen was suffering from an infectious 
disease, such as scarlet fever, this would operate to prevent 
people coming to the shop ; and whether it be slander or some 
other statement which has the effect I have mentioned, an 
action can, in my opinion, be maintained on the ground that it 
is a statement made to the public which would have the effect 
of preventing their resorting to the shop and buying goods of 
the owner." And see Levet's case, Cro, Eliz. 289, ante, p. 77 ; 
and Green v. Button, 2 C. M. & R. 707, yost, p. 149. 

I conclude, therefore, that if a defendant either knows or 



92 DEFAMATORY WORDS. 

ought to know that certain special damage will follow from his 
words, and speaks those words, desiring and intending that such 
damage shall follow, or recklessly indifferent whether such 
damage follows or not therefrom, then if the words be false, and 
if such damage does in fact follow directly from their use, an 
action on the case Avill lie against him for such damage, what- 
ever be the nature of the words. 



I 



CHAPTER III. 

CONSTRUCTION AND CERTAINTY. 

Construction is tlie correct interpretation of words, 
the giving them their true meaning, the method of 
ascertaining the sense in which they were understood by 
those who first heard or read them. 

What meaning the speaker intended to convey is 
immaterial in all actions of defamation. He may have 
spoken "without any intention of injuring the plaintiff's 
reputation, but if he has in fact done so, he must com- 
pensate the plaintiff. He may have meant one thing 
and said another : if so, he is answerable for so in- 
adequately expressing his meaning. Or he may have 
used ambiguous language which to his mind was harm- 
less, but to which the bystanders attributed a most 
injurious meaning : if so he is liable for the injudicious 
phrase he selected. What was passing in his ow^n mind 
is immaterial, save in so far as his hearers could 
• perceive it at the time. Words cannot be construed 
according to the secret intent of the speaker. [Hanlcinson 
V. 7?/%, 16 M. & W. 445 ; 2 C. & K. 440.) 

The question is always: How would ordinary English- 
men, previously unacquainted A\ith the matter, fairly 
understand the words ? We must assume that they 
give to ordinary English Avords theii- ordinary English 
, meaning, to local or technical phrases their local and 
j technical meaning. That being done, what meaning 



94 CONSTRUCTION AND CERTAINTY. 

would tlie whole passage convey to an unbiassed 
mind? 

This is clearly rather a question for the jury than for 
the judge. And accordingly by the 32 Geo. 3, c. 60 
(Fox's Libel Act) it is expressly provided that in all 
criminal proceedings for libel, the jury are to decide the 
question of libel or no libel, subject to the direction of 
the judge. In civil proceedings for libel, the practice 
is the same [Baylis v. Lcmrence^ 11 A. & E. 920 ; 3 
Perry & D. 526, 4 Jur. 652), save that here if the judge 
thinks that the words cannot possibly bear a defamatory 
meaning, he may shorten the proceedings by a nonsiut. 
"It is only when the judge is satisfied that the publica- 
tion cannot be a libel, and that, if it is found by the jmy 
to be such, their verdict will be set aside, 'that he is 
justified in withdi-awing the question fi'om their cogni- 
zance." {Per Kelly, C. B., L. E. 4 Exch. 288 ; and see 
Fray v. Fray, 17 C. B. N. S. 603 ; 31 L. J. C. P. 45 ; 
10 Jiu'. N. S. 1153 ; Teacy v. McEenna, Ir. E. 4 C. L. 
374 ; Hunt v. Goodlake, 43 L. J. C. P. 54 ; 29 L. T. 
472.) 

If, however, the judge considers that words are 
reasonably susceptible of a defamatory meaning as well 
as an innocent one, it will then be a question for the 
jury which meaning the words would convey to ordi- 
nary Englishmen who heard or read them without any 
previous knowledge of the cii'cumstances to which they 
relate. {Hankinson v. Bilhy, 16 M. & W. 442 ; 2 C. & 
K. 440.) The judge is in no way bound to state to the 
jury his o^^l opinion on the point ; it would, in fact, be 
■wi'ong for him to lay do^ra as a matter of law, that the 
publication complained of was, or was not, a libel. 
(Baylis v. Lawrence, 11 A. k E. 920.) The proper coiu'se 
is for the judge to define what is a libel in point of law, 
and to leave it to the jury to say whether the pubHca- 



CONSTRUCTION. 95 

tion in question falls within that definition. {Parmiter 
V. Coupland and another^ 6 M. & W. 105 ; 9 L. J. Ex. 
202; 4 Jur, 701.) And this is a question pre-eminently 
for the jury ; whichever way they find, the Court will 
not distiu'b the verdict, if the question was properly left 
to them. 

So too in cases of slander, the judge usually decides 
whether the words are, or are not, actionable per se, and 
whether the special damage assigned is, or is not, too 
remote. If the defendant's words cannot reasonably 
bear the meaning ascribed to them by the innuendo, and 
the judge thinks the words without that meaning are 
not actionable, he will stop the case. So, too, if the 
words even with the alleged meaning are not actionable 
(though pleaders seldom err on that side). But in all 
other cases, where there is any reasonable doubt as to 
the true construction of the words, the judge leaves the 
question to the jury. All cii'cumstances which were 
apparent to the bystanders at the time the words were 
uttered should be -put in evidence, so as to place the 
jury as much as possible in the position of such by- 
standers ; and then it is for the jury to say what 
meaning such words would fairly have conveyed to their 
mmds. And their finding is final and conclusive on the 
point ; the Court will not disturb the verdict, unless it 
be plainly perverse. 

Formerly, however, the practice was very different. After a 
verdict for the plaintiff, the defendant constantly moved in 
arrest of judgment, on the ground that a defamatory meaning 
was not shown on the record with sufficient precision ; or, as it 
soon came to be, on the ground that it was just possible, in spite 
jf the record, to give the words an innocent construction. For it 
vvas said to be a maxim that words were to be taken in mitiori 
icnsu, whenever there Avere two senses in which they could be 
aken. And in these early times the Courts thought it their 



96 CONSTRUCTION AND CERTAINTY. 

duty to discourage actions of slander. They would therefore 
give an innocent meaning to the words complained of, if by any 
amount of legal ingenuity such a meaning could be put upon 
them ; and would altogether disregard the plain and obvious 
signification which must have been conveyed to bystanders 
ignorant of legal technicalities. Thus where a married woman 
falsely said, " You have stolen my goods," and the jury found a 
verdict for the defendant, the Court entered judgment for the 
plaintiff on the ground that a married woman could have no 
goods of her own, and that therefore the words conveyed no 
charge of felony {Anon. Pasch. 11 Jac. I. ; 1 Roll. Abr. 74G ; 
now overruled by Stamp and wife v. White and tvlfe, Cro. 
Jac. 600). Again, where the words complained of were, " He 
hath delivered false evidence and untruths in his answer to a 
bill in Chancery," it was held that no action lay ; for though 
every answer to a bill in Chancery was on oath, and was a 
judicial proceeding, still in most Chancery pleadings " some 
things are not material to what is in dispute between the 
parties," and " it is no perjury, although such things are not 
truly answered ! " Mitchell v. Broivn, 3 Inst. 167 ; 1 Roll. 
Abr. 70, For further instances of such refinements, see Peake 
V. Pollard, Cro. Eliz, 214 ; Cox v. Humplivcy, ib. 889 ; and 
Holland V. Stoner, Cro. Jac. 315. 

But in the days of Charles II., the Court of Common Pleas 
decided in a case of scandalum magnatimi {Lord Toiunshend 
V. Dr. Hughes, 2 Mod, 159) that " \vords should not be con- 
strued either in a rigid or mild sense, but according to the 
general and natural meaning, and agreeable to the common 
understanding of all men." And this decision soon became 
law. See Somers v. House, Holt 39 ; and Bwrges v. Bracher, 
8 Mod. 238, In 1722, Fortescue, J,, declared in Button v, 
Hayivard et ux., 8 Mod, 24 : — " The maxim fur expounding 
words in mitiori sensu, has for a great while been exploded, 
near fifty or sixty years." In Peake v. Oldham, Cowper, 277, 8, 
Lord Mansfield commented severely on the constant practice 
of moving in arrest of judgment after verdict found : — " What ? 
After verdict, shall the Court be guessing and inventing a mode 
in which it niigiit be barely possible for these words to have 
been spoken by the defendant, without meaning to charge the 
plaiutitF with being guilty of murder ? Certainly not. Where 



NATURAL CONSTRUCTION. 97 

it is clear that words are defectively laid, a verdict will not cure 
them. But where, from their general import, they appear to 
have been spoken with a view to defame a party, the Court 
ought not to be industriuus in putting a construction upon 
them, different from what they bear in the common acceptation 
and meaning of them." And his Lordship quoted a dictum of 
Parker, C. J., in Ward v. Reynolds, Pasch. 12 Anne B. R. to 
the same effect. So in Harrison v. Thornhorough, 10 Mod. 
197 ; the Court says : — " The rule that has now prevailed is 
that words are to be taken in that sense that is most natural 
and obvious, and in which those to whom they are spoken will 
be sure to understand them." See also the remarks of De 
Grey, C.J., in R. v. Home, 2 Cowp. 682—689 ; of Buller, J., 
in R. V. Watson and others, 2 T. R. 206 ; and the judgments 
in Woolnoth v. Meadoivs, 5 East, 463 ; 2 Smith, 28. 

And such is now the law. The Courts no longer strain to find 
an innocent meaning for words i^rinid facie defamatory, neither 
will they put a forced construction on words which may fairly 
be deemed harmless. " Formerly," says Lord Ellenborough 
in 2 Camp. 403, " it was the practice to say that words were to 
be taken in the more lenient sense ; but that doctrine is now 
exploded : they are not to be taken in the more lenient or 
more severe sense, but in the sense which fairly belongs to 
them." 

And, again, in Roberts v. Camden, 9 East, 95 ; the same 
learned judge says : — " The rule which once prevailed that 
words are to be understood in mitiori seusu has been long 
ago superseded ; and words are now to be construed by Courts, 
as they always ought to have been, in the plain and popular 
sense in which the rest of the world naturally understand 
them." Now, therefore, the only question for the judge or the 
Court is whether the words are capable of the defamatory 
meaning attributed to them ; if they are, then it is for the jury 
to decide what is in fact the true construction. 

So long as the defendant's words are not absolutely 
unintelligible, a jury will judge of the meaning as well 
as other readers or hearers. All perplexity and obscurity 
will disappear under the narrow examination which the 



98 CONSTRUCTION AND CERTAINTY. 

words will receive in a coui't of law. It matters not 
whether the defamatory words be in English or in any 
other language that is understood in England, whether 
they be spelt correctly or incorrectly, whether the phrase 
be grammatical or not, whether cant or slang terms be 
employed or the most elegant and refined diction. {R. 
V. Edgar, 2 Sess. Cas. 29 ; 5 Eac. Abr. 199.) The in- 
sinuation may be indirect, and the allusion obscin-e ; it 
may be put as a question or as an "on dit"; the lan- 
guage may be ironical, figurative, or allegorical. Still, 
if there be a meaning in the Avords at all, the Court will 
find it out, even though it be disguised in a riddle or in 
hieroglyphics. In all such cases it will be a question 
for the juiy what meaning would the bystanders put 
upon the words. 

And before answering that question the jiuy should 
well weigh all the circumstances of the case, the occasion 
of speaking, the relationship) between the parties, &c. 
Especially they should consider the words as a whole, 
not dwelling on isolated passages, but giving its proper 
weight to every part. The sting of a libel may sometimes 
be contained in a word or sentence placed as a heading to 
it. The defendant will often be held liable merely in 
consequence of such prefix, Avhere, without it, he would 
have had a perfect answer to the action. So, too, a 
word added at tlic end may altogether vary the sense of 
the preceding passage. The defendant is, therefore, 
entitled to have the whole of the alleged libel read as 
jmrt of plaintiff's case. {CooJce v. Hughes, E. & M. 112.) 
And for the piu^pose of showing that the publication is 
no libel, the defendant in his turn may give in evidence 
other passages in the same publication plainly referring 
to the subject of the libel, and faiily connected with it, 
in order to prove that his intention was not such as was 
imputed to him, and that the expressions in dispute 



AMBIGUOUS LANGUAGE. 99 

will not bear the construction sought to be given them. 
{E. Y. Lambert and Fen-f/, 2 Camp. 400 ; 31 HoAvell St. Tr. 
340.) But according to Pollock, C.B., m Darby v. Ouseley^ 
25 L. J. Ex. 229 ; 1 n. & N. 1 ; 2 Jur. N. S. 497, it is 
essential that such other passages should be connected with, 
construe, modify, control, qualify, or explain the alleged 
libellous statements, and be entii'ely relevant to them. 

So, too, with a slander ; very often the words imme- 
diately preceding or following may much modify those 
relied on by the plaintiff. [Bittridge's case, 4 Eep. 19 ; 
Thomson v. Bernard, 1 Camp. 48.) Evidence may even 
be given of other libels or slanders published by the 
defendant of the plaintiff, when the language sued on is 
ambiguous, and some extrinsic evidence is necessary to 
explain it ; but such evidence is not admissible where 
the meaning of the words is clear and undisputed. 
{Stuart Y. Lovelt, 2 Stark. 93; Pearce v. Ornsbij, 1 M. & 
Eob. 455 ; Symmons v. BlaJce, ib. 477 ; 2 C. M. & E. 
416 ; 4 D. P. C. 263 ; 1 Gale, 182 ; Trailt v. Dcnham, 
Times for May 4th, 1880.) And Avhen such evidence is 
admitted, the jury should always be cautioned not to 
give any damages in respect of it. [Per Tiudal, C.J., in 
Pearson v. Lemaitrc, 5 M. & Gr. 720 ; 12 L. J. Q. 13. 
253; 7 Jur. 748 ; 6 Scott, K. E. 607.) 

Illiistratioiis. 

The Observer gcave a correct account of some proceedings in the Insolvent 
Debtors' Court, but it was lieaded " Shameful Conduct of an Attorney." 
The rest of the report was hekl privileged ; but the plaintilf recovered 
damages for the heading. 

Clement v. Leivis, 3 Br. & B. 297; 7 Moore, 200 ; 3 B. & Aid. 702. 

And see Mountney v. TFatton, 2 B. & Ad. G73. 

Bishoj) V. Latimer, 4 L. T. 775. 

TJoydell v. Jones AM. & W. 446 ; 7 D. P. C. 210 ; 1 H. & H. 408. 

Harvey V. French, 1 Cr. & M. 11 ; 2 M. & Scott, 591 ; 2 Tyr. 585. 

Lewis V. Levy, E. B. & E. 537 ; 27 L. J. Q. B. 282 ; 4 Jur. 

N, S. 970. 
t^treet v. Licensed Victnalkrs Socielii, 22 W. E. 553. 
Stunleij V. IVehh, 4 Sandf (N. Y.) 21. 

H 2 



loo CONSTRUCTION AND CERTAINTY. 

An action was brou;j,lit for an alleged libel, published in the True Sun 
newspaper : — " Riot at Preston. — Froni the Liverpool Courier. — It appears 
that Hunt pointed out Cou.nsellor Seager to the mob, and said, ' There is 
one of the Mack sheep.' The mob fell ujjou him and murdered him. In 
the affray Hunt had his nose cut off. The coroner's inquest have brought 
in a verdict of wilful murder against Hunt, who is committed to gaol. — 
Fudge." The plaintiff" contended that the word " Fudge " was merely 
introduced with reference to the future, in order that the defendants might 
afterwards, if the paragraph were complained of, be able to refer to it, as 
showing that they intended to discredit the statement. Lord Lyndhurst, 
C. B., told the jury that the question was, with what motive the publication 
was made. It was not disputed that if the paragraj^h, which was copied 
from another paper, stood without the word " Fudge," it would be a 
libel. If they were of opinion that the object of the paragraph was to 
vindicate the plaintiff's character from an unfounded charge, the action 
could not be maintained ; but if the word " Fudge " was only added for 
the purpose of making an argument at a future day, then it would not 
take away the effect of the liJbel. Verdict for the plaintiff. Damages, one 
farthing. 

Huntv. AIgar,() C. & P. 245. 

Of the Innuendo. 

In arriving at the meaning of tlio dofendant's words, 
the Court and jury are often materially assisted by an 
averment in the plaintiff's Statement of Claim, called an 
innuendo. This is a statement by the plaintiff of the 
construction which he puts upon the words himself, and 
which he will endeavoui- to induce the jiuy to adopt at 
the trial. Where a defamatory meaning is apparent on 
the face of the libel itself, no innuendo is necessary : 
though even there the j)leader occasionally inserts one to 
heighten the effect of the words. But where the words 
prima facie are not actionable, an innuendo is essential to 
the action. It is necessary to bring out the latent 
injurious meaning of the defendant's words ; and such 
innuendo must distinctly aver that the words bear a 
specific actionable meaning. [Cox v. Cooper ^ 12 W. E. 
75; 9 L. T. 329.) 

It is the office of an innuendo to define the defamatory 
meaning which the plaintiff sets on the words ; to show 



INNUENDO. loi 

liow they come to have that defamatory meaning ; and 
also to show how they relate to the plaintiff, whenever 
that is not clear on the face of them. But an innuendo 
may not introduce new matter, or enlarge the natiu-al 
meaning of words. It must not put upon the defendant's 
words a construction which they will not bear. If the 
words are incapable of the meaning ascribed to them by 
the innuendo, and are p'trnd fade not actionable, the 
declaration will be held bad on demurrer ; or if there be 
no demuiTer, the judge at the trial will stop the case. 
If, however, the C^ourt or the judge think the words are 
capahle of the meaning ascribed to them, however im- 
probable it may appear that they were in fact so under- 
stood, then it must be left to the jury to say whether 
such is or is not theii* true meaning. {^Huntx. GoodlaJce., 
43 L. J. C. P. 54 ; 29 L. T. 472 ; Broome v. Gosden, 1 
C. B. 728.) 

An innuendo now requires no prefatory averment to 
support it. (Common Law Procedm^e Act, 1852, s. 61.) 
The libel or slander sued on must of course be set out 
vcrhatim in the Statement of Claim. {Harris v. Warre, 
4 C. P. D. 125 ; 48 L. J. C. P. 310 ; 27 W. E. 4G1 ; 40 
L. T. 429.) The innuendo usuallj^ follows it immediately. 
And such a declaration is to be considered as two counts 
under the old system of pleading, one with an innuendo 
and one without. And if the j^laintiff can show a good 
cause of action, either with or without the alleged mean- 
ing, his statement of claim will be sufficient. (Per 
Blackburn, J., in Watlrin v. Ilall, L. E. 3 Q. B. 402 ; 37 
L. J. Q. B. 125 ; 10 W. E. 857 ; 18 L. T. 5G1.) 

The defendant is in no way embarrassed by the 
presence of the innuendo in the Statement of Claim : in 
fact it is to him an advantage. He can either deny that 
he ever spoke the Avords, or he can admit that he spoke 
them, but deny that they conveyed that meaning. He 
can also assert that the words he spoke were true, either 



102 CONSTRUCTION AND CERTAINTY. 

■with or without the alleged meaning. It will then be 
for the jury to say whether the plaintiff's construction of 
the Avords is borne out by the evidence. If not, the 
plaintiff may fall back upon the words themselves, and 
lu'ge that, taken in their natural and obvious significa- 
tion, they are actionable ijcr se without the alleged 
meaning, and that therefore his unproved innuendo 
may be rejected as sm-plusage. [Harvey v. French^ 1 
Cr. & M. 11 ; 2 M. & Scott, 591 ; 2 Tp-w. 585.) But 
he cannot at the close of the trial resort to another con- 
struction of the words different both fi'om theu* lyrima 
facie meaning and from that pointed by the innuendo ; 
if he win a verdict in this wa}", the Court will grant a 
new trial on the ground of surprise. [Hunter v. Hharpe^ 
4 F. & F. 983 ; 15 L. T. 421 ; Faiel v. Tatnell, 29 W. E. 
172 ; 43 L. T. 507.) The plaintiff cannot in the middle 
of the case start a fresh innuendo not on the record ; he 
must abide by the construction he put on the words in 
his Statement of Claim, or else rely on their natural and 
obvious import. If the jmy negative his innuendo, and 
the words are not actionable in theii- natural and primary 
sense, judgment must be for the defendant. {Brcmhridge 
V. Latimer, 12 W. E. 878; 10 L. T. 816; 3Iaguire v. 
Knox, 5 Ir. C. L. E. 408.) 

Illustrations. 
"He liath forsworn himself." These words are not in themselves a 
sufficient imputation of perjury, because he is not said to have sworn 
falsely while giving evidence in Court, But an innuendo " before the 
justice of assize " is clearly bad ; for it is not an explanation of defendant's 
words, but an addition to them. 

Anon. 1 Roll. Alir. 82. 

Holt v. Schokficld, 6 T. R. 691. 
A libel alleged that n gentleman was on a certain night hocussed and 
robbed of ^40, in the ^)hiintiff's public-house. An innuendo " meaning 
thereby that the said puljlic-house was the resort of, and frequented by, 
felons, thieves, and depraved and bad characters," after verdict for the 
defendant, was held too wide. 

Broome v. Gosden, 1 C. B. 728. 

Clarke's Case dc Dorchester (1619), 2 RoUe's Rep. 136. 



INNUENDO. 



103 



" There is strong reason for believing that a considerable sum of money- 
was transferred by power of attorney obtained by undue intluence;" an 
iimuendo " meaning as a fact that the plaintilT had by undue influence pro- 
cured the money to be transferred," was held not too wide ; for such would 
be the meaning conveyed to readers by the defendant's insinuation. 

Turner v. Mery^veaiher, 7 C. B. 251 ; 18 L. J. C. P. 155 ; 13 

Jur. 683 ; 19 L. J, C. P. 10. 
IVilliams v. Gardiner, 1 M. & W. 245 ; 1 Tyrw. & Gr. 578. 
Libel complained of :— " He has become so inflated with self-importance 
by the few hundreds made in my service— God only knows whether 
honestly or otherwise— that," &c. Innuendo, "meaning thereby to in- 
sinuate that the plaintiff had conducted himself in a dishonest manner in 
the service of the defendant." The Court refused to disturb a verdict for 
the plaintifl:". 

Clegcj V. Laffer, 3 Moore & Sc. 727 ; 10 Bing. 250. 
The defendant said, " Master Barham did burn my barn with his owai 
hands, and none but he." At that date it was not felony to burn a barn, 
unless it were either full of corn or parcel of a mansion-house. An in- 
nuendo, " a barn full of corn," was held too wide. " That is not," says 
De Grey, C. J., commenting on this case in Co^\'p. 684, "an explanation of 
what was said Ijefore, but an addition to it. But if in the introduction it 
had been averred, that the defendant had a barn full of corn, and that in a 
discourse about the barn, the defendant had spoken the words charged in 
the libel of the plaintifl' ; an innuendo of its being the barn full of corii 
would have been good. For by coupling the innuendo in the libel with 
the introductory averment, ' his Ijarn full of corn,' it would have made it 
compleat." 

Barliani's Case, 4 Rep. 20 : Yelv. 21. 

See Capital and Counties Bank v. Hentij and Sons, 28 W. R. 490 ; 
5 C. P. D. 514 ; 49 L. J. C. P. 830 ; 42 L. T. 314 ; (C. A.) 
28 W. R. 851. 
Words complained of : — "He is a regular prover under bankruptcies." 
An innuendo, " the defendant meaning thereby that the plaintiff liad proved 
and was in the habit of proving fictitious debts against the estates of bank- 
rupts, with the knowledge that such debts were fictitious," is now all that 
is necessary. 

C. L. P. Act, 1852, Sched. B., form 33. 
Not so formerly. 

Anr/le V. Alexander, 7 Bing. 119 ; 1 Or. & J. 143; 1 Tyrw. 9 ; 4 
M. & P. 870, ante, p. 78. 
The alleged libel was as follows : — " Notice,— any person giving informa- 
tion where any property may be found belonging to H. G. (meaning the 
plaintifl), a prisoner in the King's Bench prison, but residing within the 
rules thereof, shall receive five per cent, upon the goods recovered, for their 
trouble, l)y applying at Mr. L.," &c. Innuendo, that the plaintiff had 
been and Avas guilty of concealing his property with a fraudulent and 
unlawful intention. Held, on general demurrer, that the innuendo, unsup- 



I04 CONSTRUCTION AND CERTAINTY. 

ported Ly any prefatory averment, was too large ; and that the words, in 
themselves, were not actionable. 

Gomiwriz v. Levy, 9 A. & E. 282 ; 2 Jur. 1013 ; 1 P. & D. 214 ; 

1 W. W. & H. 728. 
Wheeler v. Raynes, 9 A. & E. 286, note ; 1 W. W. & H. 645 ; 1 

P. & D. 55. 
Ciupel and others v. Jones, 4 C. B. 259 ; 11 Jur. 396. 
Day V. RoUnson, 1 A. & E. 554 ; 4 N. & M. 884. 
Adams v. Meredeiv, 2 Y. & J. 417 ; 3 Y. & J. 219. 
But all tliese cases are overruled by the C. L. P. Act, 1852, s. 61, as inter- 
preted in 

Hemmings v. Gasson, E. B. & E. 346; 27 L. J. Q. B. 252 ; 4 Jur. 
N. S. 834. 
An information was filed against a Nonconformist minister for a libel 
upon "the bishops" contained in a book, called "A Paraphrase upon the 
New Testament." An innuendo, " the bishops of Eiigland," was held to 
be allowable, if from the nature of the libel this was clearly what was 
meant. 

R. V. Baxter (1685), 3 Mod. 69. 
The libel accused a gentleman of saying, " He could see no probability of 
the war's ending with France, until the little gentleman on the other side 
of the water was restored to his rights." Innuendo, "the Prince of Wales," 
allowed to be good ; in fact the Court thought the meaning was clear with- 
out any innuendo. 

Anon. (1707), 11 Mod. 99. 
R. V. Mattheios (1719), 15 How. St. Tr. 1323. 
Libel : — " The mismanagements of the navy have been a greater tax upon 
the merchants than the duties raised by government." An innuendo, " the 
royal navy of this kingdom," held not too wide. 

R. V. TutcMn (1704), 14 How. St. Tr. 1095 ; 5 St. Tr. 527 ; 2 

Ld. Eaym. 1061 ; Salk. 50 ; 6 Mod. 268. 
R. V. Home (1777), Cowp. 672 ; 11 St. Tr. 264 ; 20 How. St. 
Tr. 651. 

Words may be : — 

(1) obviously defamatory ; 

(2) ambiguous: that is, words wliich, though ^7r/;«a 
facie defamatory, are still on the face of them 
suscejitible of an innocent meaning ; 

(3) neutral; i.e., words Avhich are meaningless till 

some explanation is given ; such are slang 
expressions, words in a foreign language, words 
used in some special, local, technical, or custo- 
mary sense. ; 



WORDS CLEARLY DEFAMATORY. 105 

(4) prima facie innocent ; but capable of a de- 

famatory meaning"; 

(5) Obviously innocent ; words wliich cannot be 

construed so as to convey any imputation on 
tlie plaintiff. 
To these different classes of words special rules of 
pleading, evidence, and construction apply. 

1. Words ohviouslij defamatorij. 
Here no innuendo is necessary. ISTo parol evidence is 
admissible at the trial to explain the meaning of the 
words. The judge will direct the jury as a matter of law 
that the words arc actionable, and that they must find for 
the plaintiff. The defendant cannot be heard to say that 
he did not intend to injure the plaintiff's reputation, if 
he has in fact done so. Should the jury perversely re- 
fuse to follow the judge's direction, a new trial will be 
granted. {Levi v. Milne^ 4 Bing. 195 ; 12 Moore 418.) 

But the defendant may plead circumstances which made it 
clear at the time he spoke or wrote thatihe words were not 
used in their ordinary signification. He may thus take the 
words out of this class into class 2, words 'jyrhmt facie defama- 
tory. It will then be a question for the jury how the by- 
standers understood the words. But such question only arises 
where the words are susceptible of the innocent meaning which 
the defendant seeks to place on them, and where also the cir- 
cumstances which qualify the injurious words were known to 
the bystanders at the time. 

Illustrations. 

It is libellous, without any innuendo, to write and publisli tliat a news- 
paper has a separate page devoted to the advertisements of usurers and 
quack doctors, and that the editor takes respectable advertisements at a 
cheaper rate if the advertisers will consent to their appearing in that page. 
The Court, however, expressed surprise at the absence of some such in- 
nuendo as " meaning thereby that the plaintilF's paper was an ill-conducted 
and low-class journal." 

Rvssdl and another v. Webster, 23 W. R. 59. 



io6 CONSTRUCTION AND CERTAINTY. 

Where a libel called tlie plaintiff a " truckm aster," and the defendant 
justified ; but no evidence Avas given at the trial as to the meaning of the 
word ; the Coiut held after some hesitation that, though the word was not 
to be found in any English dictionary', its meaning was sufficiently clear to 
sustain the action, tlicie being a statute called " The Truck Act." 

Homer v. Taunton, 5 H. & N. 661 ; 29 L. J. Ex. 318 ; 8 W. R. 
499 ; 2 L. T. 512. 
To write and publish that a certain woman is a prostitute, and that " she 
is, I understand, under the patronage or protection of " the plaintiff, was 
held actionable in the Court of Appeals in New York, although there was 
no innuendo averring that she was under the plaintiff's protection for 
immoral purposes. 

More V. Bennett (1872), 48 N. Y. R. (3 Sickel), 472 ; 
reversing the judgment of the Supreme Court below, reported, 33 How. Pr. 
R. 180 ; 48 Barbour, N. Y. 229. 

It is libellous to ^vl'ite and publish these words : — " Threatening letters. 
The Middlesex grand jury have returned a true bill against a gentleman of 
some property named French." And no innuendo is necessary to explain 
the meaning of the Avords ; for they can only import that the grand jmy 
had found a true bill against French for the misdemeanour of sending 
threatening letters. 

Harrcy v. Freneh, 1 Cr. & M. 11 ; 2 M. & Scott, 591 ; 2 Tyrw. 
585. 
Allegorical terms of well-known import are libellous i)cr se, without in- 
nuendoes to explain their meaning ; e.g., imputing to a person the qualities 
of the " frozen snake," or calling him " Judas." 

Hoare v. SikerlocJc (No. 1, 1848), 12 Q. B. 624 ; 17 L. J. Q. B. 
306 ; 12 Jur. 695. 
Words comj^lained of :— " Thou art a thief : " no innuendo at all is neces- 
sary, as larceny is clearly imi:)uted. 

Blumley v. Rose, 1 Roll. Abr. 73. 
Sloinncm v. Dutton, 10 Bing. 402. 
If the words can be understood as imputing an indictal)le offence, no 
innuendo is necessar3^ And, if it were, an innuendo, " meaning thereby 
that the j^haintiff had been guilty of an indictable offence," is sufficient 
without specifying what particular indictable offence is meant. 
Kinnahan v. McCullagli, Ir. R. 11 C. L. 1. 
Saunders v. Edioarcls, Sid. 95. 
Francis v. Boose, 3 M. & W. 191 ; 1 H. & H. 36. 
To say, " He robbed John White," is primu facie clearly actionable. But 
the defendant may show, if he can, that that is not the sense in which 
they were fairly understood by bystanders who listened to the whole conver- 
sation, thougli previously iinaccpiainted with the matter to which the words 
sued on relate. 

Tomlinson v. Brittlehanl; 4 B. & Adol. 630 ; 1 Nev. & Man. 

455. 
Hankinson v. Bilby, 16 M. & W. 442 ; 2 C. & K. 440. 
Martin v. Loei, 2 F. & F. 654. 



WORDS PRIMA FACIE DEFAMATORY. 107 

2. Words prima facie defamatory. 

Hero, too, no inuuenclo is necessary, and no parol 
evidence is admissible at tlie trial to explain the mean- 
ing of the words. The judge will direct the jury that 
the words are p'lma facie actionable. 

But the defendant may plead cii'cumstances which 
made it clear at the time that the w^ords were not used 
by him in their ordinary signification. He may plead 
that the words were uttered merely in a joke, and were 
so understood by all who heard them ; or that the words 
were part of a longer conversation, the rest of which 
limits and explains the words sued on ; or any other 
facts which tend to show that they were uttered with an 
innocent meaning, and so understood by the bystanders. 
And if such a defence be pleaded, parol evidence may be 
given of the facts alleged. And then it becomes a 
question for the jury whether the facts as pleaded are 
substantially proved, and Avhether they do put on the 
words a coloui' different from what they would pimd 
facie bear. It is generally difficult, however, to induce 
the jury to adopt the defendant's harmless view of his 
own language. 

But the defendant may not plead or give in evidence 
any facts which were not known to the bystanders at 
the time the words were uttered. The defendant's secret 
intent in uttering the words is immaterial. [HanJdnson 
V. Bilhjj, 16 M. & W. 445 ; 2 C. & K. 440.) 

The defendant is allowed thus to give evidence of all " the 
surrounding circumstances," in order to place the jury so far as 
possible in tlie position of bystanders, that they may judge how 
the words would be understood on tlie particular occasion. But 
though evidence of such extrinsic facts is admitted, parol 
evidence merely to explain away the words used, to show that 
they did not for once bear their ordinary signification, is in- 
admissible. A witness cannot be called to say "/ should not 



io8 CONSTRUCTION AND CERTAINTY. 

Lave understood defendant to make any imputation whatever 
on the plaintiff." The jury know what ordinary English means, 
and need no witness to inform them. 

The leading case on tliis point is one cited in the Lord 
CromiueU's Case (1578), 4 Rep. 13, 14. (At least, it appears 
to be a decided case, not a mere illustration.) " If a man brings 
an action on the case for calling the plaintiff murderer, the 
defendant will say, that he was talking with the plaintiff con- 
cerning unlawful hunting, and the plaintiff confessed that 
he killed several hares with certain engines ; to which the 
defendant answered and said, "Thou art a murderer " (innuendo 

the killing of the said hares) Resolved by the whole 

Court, that the justification was good. For in case of slander 
by words, the sense of the words ought to be taken, and the 
sense of them appears by the cause and occasion of speaking of 
them ; for sensvs vei-horum ex causa dicendi accipiendus est 
et sermones semper accipiendi sunt secundum suhjectaon. . . . 
And it was said, God forbid that a man's words should be by 
such strict and grammatical construction taken by parcels 
against the manifest intent of the party upon consideration 
of all the words, which import the true cause and occasion 
which manifest the true sense of them ; quia quoi ad ununi 
UneTYi loquuta sunt, non debent ad alium detorqueri : and, 
therefore, in the said case of murder, the Court held the justi- 
fication good ; and that the defendant should never be put to 
the general issue, when he confesses the words and justifies 
them, or confesses the words, and by special matter shows that 
they are not actionable." 

Illustrations. 

Words complained of: — " You stole my apples." Tlie defendant cannot 
be allowed to state that lie only meant to say, " Yon have tortiously removed 
my apples under an unfounded claim of right." The bystanders could not 
possibly have understood from the word used that a civil trespass only was 
imputed. 

Dcrerill v. Ilulhert (.Jan. 25th, 1878), ex relatione med. 
But where the words complained of are, " Thou art a thief ; for thou 
tookest my beasts by reason of an execution, and I will hang thee," no 
action lies, for it is clear that tlie whole sentence taken together imports 
only a charge of trespass. 

WiWs Case, 1 Roll. Abr. 51. 
Sibley v. Tomlin?, 4 Tyrw. 90. 



NEUTRAL WORDS. 109 

Where words are used which clearly import a criminal charge (as, " Yo\x 
thief," or " You traitor,") it is still open to the defendant to show if he can 
that he used them merely as vague terms of general abuse, and that the 
bystanders must have understood him as meaning nothing more than " You 
rascal," or "You scoundrel." When such words occur in a string of non- 
actionable epithets, or in a torrent of general vulgar abuse, the jury may 
reasonably infer that no felony was seriously imputed. If, however, the 
jury put the harsher construction on defendant's language, no new trial will 
be granted ; for it is a question entirely for them . 

Minors v. Leeford, Cro. Jac. 114. 

Smith V. JFard, Cro. Jac. 674. 

Penfold V. JFestcofe, 2 Bos. & P. N. R. 335. 
Where the defendant said to the plaintiff in the presence of others, "You 
are a thief, a rogue, and a swindler," it was held that tlie defendant could 
not call a witness to explain the particular transaction which he had in his 
mind at the time, since he did not in any way expressly refer to it in the 
presence of his hearers. 

Martin v. Loe'i, 2 F. & F. 654. 

Eead v. Ambridge, 6 C. & P. 308. 

HanUnson v. Bilhy, 16 M. & W. 442 ; 2 C. & K. 440. 
But where the defendant said : — " Thomson is a damned thief ; and so 
was his father before him, and I can prove it ; " but added, " Thomson 
received the earnings of the ship, and ought to pay the wages," Lord 
Ellenborough held that the latter words qualified the former and showed 
no felony was imputed ; the person to whom the words were spoken 
being the master of the ship and acquainted with all the circumstances 
referred to. 

Thomson v. Bernard, 1 Camp. 48. 

Bittridge's Case, 4 Rep. 19. 

Cristie v. Coivell, Peake, 4. 

Day V. Robinson, 1 A. & E. 554 ; 4 N. & M. 884. 

3. Neutral Words. 

Where the defendant has used only ordinary English 
words, the judge can decide at once whether they m^Qprimd 
facie actionable or not. But where the words are in a 
foreign language, or are technical or provincial terms, an 
innuendo is absolutely necessary to disclose an actionable 
meaning. So, too, an innuendo is essential where ordi- 
nary English words are not in the particular instance 
used in theii- ordinary English signification, but in some 
peculiar sense. 

Where the Avords are spoken iu a foreign language 



no CONSTRUCTION AND CERTAINTY. 

the original words should be set out in the Statement of 
Claim, and then an exact translation should be added. 
{ZenoUo v. Axtell, 6 T. E. 1G2 ; 3 M. & S. 116.) In the 
case of slander an averment was formerly requii'ed to the 
effect that those who were present imderstood that lan- 
guage. (Fleetwoods. Curl, Cro. Jac. 557; Hob. 268.) And 
though such an averment is no longer necessary, the fact 
must still be proved at the trial. For if words be spoken 
in a tongue altogether unknown to the hearers, no action 
lies [Jones v. Drivers (vel Dcmlces) (1597), Cro. Eliz. 
496 ; 1 EoU. Abr. 74) ; for no injury is done to the 
plaintiff's reputation. But if a single bystander imder- 
stood them, that is enough. Where, however, the words 
are spoken in the A'ornacular of the place of publication 
(as "Welsh words spoken in Wales) it will be presumed 
that the bystanders understood them. At the trial the 
correctness of the translation must be proved by a sworn 
interpreter. 

So at the trial whenever the words used are not ordi- 
nary English, but local, technical, provincial, or obsolete 
expressions, or slang or cant terms, evidence is admissible 
to explain their meaning, provided such meaning has 
been properly alleged in the Statement of Claim. Eut 
when the words are well-known and perfectly intelligible 
English, the Court will give them theii" ordinary English 
meaning, unless it is in some way shown that that mean- 
ing is inapplicable. This may aj^jiear from the words 
themselves ; for in some cases to give them theii- ordi- 
nary English meaning would make nonsense of them. 
But if in their ordinary English mcanmg the words 
would be intelligible, facts must be given in evidence to 
show that they may have been used in a particular sense 
on this particular occasion. After that has been done a 
bystander may be asked, " What did you understand by 
the expression used?" But without such a foundation 



UNMEANING WORDS. iii 

being first laid, the question is not allowable. [Daines 
V. Hartlefj, 3 Excli. 200 ; 18 L. J. Ex. 81 ; 12 Jur. 
1093.) 

Illustrations. 

Words complained of : — "You are a bunter." No ianuendo : Willes, J., 
nonsuited the plaintiff, on the ground that the word had no meaning at all, 
and could not therefore be defamatory in ordinary acceptation ; and he 
refused to allow the plaintiff to be asked, what the word " bunter " meant. 
Aliter, had there been an innuendo averring a defamatory sense to the word 
"bunter." 

Eawlincjs et ux. v. Xorhurij, 1 F. & F. 341. 
Words spoken to an attorney : — "Thou art a daffidowudilly." Innuendo, 
meaning thereby that he is an "ambidexter," i.e., one who takes a fee from 
both sides, and betrays the secrets of his client. Held that an action lay ; 
1 RoU. Abr. 55. 

Annison v. Blojidd, Carter, 21-i ; 1 Roll. Abr. 55. 
It is actionable to say of a stockjobber that, "He is a lame duck;" 
innuendo, "meaning thereby that the plaintiff had not fulfilled his contracts 
in respect of the said stocks and fmids," (stockjobbing being now legalised 
by the 23 & 24 Vict. c. 28). 

Morris and Langdcde, 2 Bos. & Pull. 284. 
The word " Welcher " requires an innuendo to explain its meaning. 

Blackmail v. Bryant, 27 L. T. 491. 
The defendant charged the plaintiff, a pawnbroker and silversmith, 
with the unfair and dishonourable practice of '•' duffing ; " innuendo, 
furbishing up damaged goods and pledging them with other pawnbrokers 
as new. 

Hicldnhothamx. Leach, 10 M. & W. 361 ; 2 Dowl. N. S. 270. 
The words, " He is mainsworn," were spoken in one of the northern 
counties where "mainsworn" is equivalent to "perjured," (forsworn with 
liis hand on the book). Held actionable. 
Slater v. Franks, Hob. 126. 

And see Coles v. Haveland, Cro. Eliz. 250 ; Hob. 12. 
A. and B. were partners, and were conversing with the -defendant. A. 
said they held some bills on the plaintiff's firm ; the defendant said : — 
" You must look out shai-p that they are met by them." At the trial, B. 
was called as a witness, and stated these facts. The counsel for the plaintiff 
tlien proposed to ask B. : — " What did you understand by that ? " But 
the question was objected to, and disallowed by the judge (Pollock, C. B.) 
in that form, and the counsel would put it in no other shape. The jury 
found a verdict for the defendant ; and the Court of Exchequer refused to 
grant a new trial. 

Daincs and another v. Hartley, 3 Exch. 200 ; 18 L. J, Ex. 81 ; 
12 Jur. 1093. 
The defendant, the editor of a newspaper, owed plaintiff money under an 



112 CONSTRUCT/ON AND CERTAINTY. 

award ; ^ancl wrote and j)ublished in his newspaper these words : — " The 
money will be Ibrthcuiuing on the last day allowed by the award, but 
we are not disposed to allow him to put it into "Wall-street for shaving 
purposes before that period." " Shaving " in New York means, (i.) dis- 
counting bills or notes ; ' (ii.) fleecing men of their goods or money by 
overreaching, extortion, and oppression. The declaration contained no 
innuendo alleging that the words were used in the second defamatory 
sense. Held no libel, on demurrer. 

Stone V. Coojyer (1845), 2 Denio (X. Y.), 293. 



4. Words prima facie innocent, hut capable of 
a defamatory meaning. 

"WHiereyor the defendant's words are capable both of a 
harmless and an injnrions meaning, it will be a question 
for the jnr}" to decide which meaning the hearers or 
readers would on the occasion in question have reason- 
ably given to the words. Here an innuendo is essential 
to show the latent injurious meaning. Without an 
innuendo, there would be no cause of action shown on 
the record. And such innuendo should be carefully 
drafted ; for on it the plaintiff must take his stand at 
the trial. He cannot during the course of the case 
adopt a fresh construction. He may, it is true, fall 
back on the natural and obvious meaning of the words : 
but that we assume here not to be actionable. And 
such innuendo must be specific ; it must distinctly aver 
a definite actionable meaning. A general averment, 
such as, "using the words in a defamatory sense," or 
"for the purpose of creating an impression imfavourable 
to the plaintiff," would be insufficient. {Coxx. Cooper., 
12 W. E. 75 ; 9 L. T. 329.) 

The words, too, must be reasonably susceptible of the 
defamatory meaning put upon them by the innuendo, or 
the Statement of Claim will be demurrable ; or if there 
be no demurrer, the judge at the trial should stop the 



WORDS PRIMA FACIE INNOCENT. 113 

case. In fact the words in that case belong rather to 
Class 5, for they arc incapable of a defamatory meaning. 

If, however, the words, though prima facie innocent, 
are reasonably susceptible of a defamatory meaning, then 
it is a question for tlie jury in which meaning would 
bystanders or readers have reasonably understood them. 
In such a case, if the defendant demurs to the Statement 
of Claim, his demurrer will be overruled (Jenner and 
another v. A' Beckett, L. E. 7 Q. B. 11 ; 41 L. J. Q. B. 14; 
20 W. E. 181 ; 25 L. T. 464); if the judge at the trial 
nonsuits the plaintiff, the Court will order a new trial. 
{Hart and another v. Wall, 2 C. P. D. 146 ; 46 L. J. C. P. 
227 ; 25 W. E. 373.) 

When it is clear that the words complained of are 
not defamatory in their primary sense, there will still be 
a further question : — Were there any facts known both 
to speaker and hearer which would reasonably lead the 
latter to understand the words in a secondary and a 
defamatory sense ? And this is a question for the jury, 
if there be any evidence to go to them of such facts. 
{Capital S;- Counties Bank v. Henty (^ Sons (C. A.), 5 
C. P. D. 514 ; 49 L. J. C. P. 830 ; 28 W. E. 851 ; Ruel 
V. Tatnell, 29 W. E. 172 ; 43 L. T. 507.) 

It will be of no avail for the defendant to urge (except 
in mitigation of damages) that he meant the words in 
the innocent sense, if the jury are satisfied that ordinary 
readers or bystanders would have certainly understood 
them in the other sense. The jury will consider the 
whole of the circumstances of the case, the occasion of 
publication, the relationship between the parties, &c. 
Also whenever the words of a libel are ambiguous, or the 
intention of the writer equivocal, subsequent libels are 
admissible in evidence to explain the meaning of the 
first, or to prove the innuendoes, even although such 
subsequent libel be ^vi'itten after action brought. The 



114 CONSTRUCTION AND CERTAINTY. 

decision of tlie jury on the question is final and con- 
clusive. 

The plaintiff may also aver in his Statement of Claim 
that the Avords were spoken ironically 5 and it will then 
be a question for the jury quo animo the words were 
used. 

Illustrations. 

" He is a healer of felons ; '' immeudo, a concealer of felons. Held 
actionalDle. 

Pridham v. Tach'r, Yelv. 153 ; Holi. 126 ; Cart. 214. 
" He has set his own premises on fire." These words are ijrima facie 
innocent ; but may become actionable, if it be averred that the house was 
insured, and that the words were intended to convey to the hearers that the 
plaintiff had purposely set fire to his own premises with intent to defraud 
the insurance office. 

Sweetapple v. Jesse, 5 B. & Ad. 27 ; 2 X. & M. 36. 
" She secreted one and sixpence under the till, stating, ' These are not 
times to be robbed.' " No innuendo. There being notMng to show tliat 
the Is. 6d. was not her o-wn money, the Coiu't arrested judgment ; for, 
though special damage was alleged, it was not the necessary and natural 
consequence of the words, as set out in the declaration. 

Kelly v. Partington, 5 B. & Ad. 645; 3 N. & M. 116. 
The plaintiff", Mary Griffiths, was a butcher and had a son MattheM'. 
Words spoken by defendant : — " Matthew uses two balls to his mother's 
steelyard ; " innuendo, "meaning that plaintiff l)y Matthew, her agent and 
servant, used improper and fraudulent weights in her said trade, and de- 
frauded and cheated in her said trade." After verdict for the plaintiff", luhJ 
that the words, as stated and explained, were actionable. 

ariffiths V. Leids, 7 Q. B. 61 ; 8 Q. B. 841 ; 14 L. J. Q. B. 197 ; 
15 L. J. Q. B. 249 ; 9 Jur. 370 ; 10 Jur. 711. 
To say that the plaintiff is " Man Friday " to another is not actionable, 
without an innuendo averring that the term imputed undue subserviency 
and seif-luimiliation. 

Forbes v. King, 2 L. ,T. Ex. 109 ; 1 Dowl 672. 
See JFoodgate v. Pidout, 4 F. & F. 202. 
Words complained of: — "The old materials have been relaid by you in 
the asphalte work executed in the front of the Ordnance Office, and I have 
seen the work done." Innuendo, "that the plaintiff' had been guilty of 
disho]iesty in his trade by laying down again the old asphalte which had 
before been used at the entrance of the Ordnance Office, instead of new 
asphalte according to his contract ; " and this innuendo was held not too 
large. Verdict for the plaintiff. Damages, 40s. 

Bahoneau v. Farrell, 15 C. B. 360 ; 24 L. J. C. P. 9 ; 3 C. L. R. 
42 ; 1 Jur. X. S. 114. 



U'ORDS PRIMA FACIE IXXOCEXT. 115 

An action was brought for tlie following libel on the plaintiff in the way 
of Ills trade : — " Society of Guardians for the Protection of Trade against 
Swindlers and Sharpers. I am directed to inform you that the persons 
using the firm of Goldstein and Co. are reported to this Society as improp)er 
to be proposed to be balloted for as members thereof." After verdict for 
the plaintiff, the Court arrested judgment, because there was no averment 
that it was the custom of the Society to designate swindlers and sharpers 
by the term " improper persons to be members of this Society." [There was 
an innuendo, " meaning thereby that the plaintiff was a swindler and a 
sharper, &c.,'"' which would be sufficient now ; but before the C. L. P. Act, 
1852, s. 61, an innuendo required a prefatory averment to support it.] The 
words in their natural and obvious meaning were held to be no libel. 

Goldstein v. Foss, 6 B. & C. 154 ; 1 M. & P. 402; 2 Y. & J. 146 ; 

9 D. & R. 197 ; (in Ex. Ch.) 4 Bing. 489 ; 2 C. & P. 252. 
Capel and others v. Jones, 4 C. B. 259 ; 11 Jur. 396. 
To say of a merchant, " He hath eaten a spider," Mr. Justice Wild said 
was " actionable with a proper averment what the meaning is." But the 
report does not vouchsafe any explanation as to what the meaning was. 

Franklijn v. Butler, Pasch. 11 Car. I., cited in Ammon v. Blo- 
ficld, Carter, 214. 
The words, " 'Ware hawk there ; mind what you are about," will, with 
proper averments, amount to a charge of insolvency against the plaintiff, a 
trader ; and be therefore actionable. 

Orjni'ood v. Barkes (vel Parkes), 4 Bing. 261 ; 12 Moore, 492. 
The defendant said to an upholsterer : — " You are a soldier ; I saw you 
in your red coat doing dutj'- ; your word is not to be taken." These words 
are primd facie not actionable ; but it Avas explained that there was then a 
common practice for tradesmen to sham enlisting so as to avoid being 
arrested for debt. The words were therefore held actionable as damaging 
the credit of a trader. 

Arne v. Johnson, 10 Mod. 111. 
Gostling v. Brooks, 2 F. & F. 76. 
The defendant said of the plaintiff' :— " Foulger trapped three foxes in 
Eidler's Avood." These words are primd facie not actionable. But the 
declaration averred that the plaintiff was a gamekeeper, that it is the duty 
of a gamekeeper not to kill foxes, that the plaintiff was employed expressly 
on the terms that he would not kill foxes, and that no one who killed foxes 
would be employed as a gamekeeper. Held, on demurrer, a good declara- 
tion ; for the words, so explained, clearly imputed to the plaintiff' miscou- 
iuct in his office or occupation, and were therefore actionable without 
proof of special damage. 

Foubjer y^ Xcuxorjdj,L. R. 2 Ex. 327; 36 L. J. Ex. 169 ; 15 W. R. 

1181 ; 16 L. T. 595. 

A landlord sent to his tenants a notice : — "Messrs. Henty & Sons hereby 

{ive notice that they will not receive in payment any checjues drawn on 

my of the branches of the Capital and Counties Bank." Innuendo, 

meaning thereby that the plaintiffs were not to be relied upon to meet 

he cheques drawn upon them, and that their position was such that they 



Ii6 CONSTRUCTION AND CERTAINTY. 

were not to be trusteil to cash the cheques of their customers." KM that 
the words in their primary sense were not libellous ; and that as no evi- 
dence was offered of facts known to the tenants which could reasonably 
induce them to understand the words in the defamatory sense ascribed to 
them by the innuendo, there was no question for the jury, and the judge 
should have stopped the case. 

Oa'pital and Counties Bank v. Henty and Sons (C. A.), 5 C. P. D. 
514 ; 49 L, J. C. P. 830 ; 28 W. R. 851 [reversing the decision 
of the C. P. T)., 28 W. R. 490 ; 42 L. T. 314]. 
Ironical praise may be a lil^el ; e.g., calling an attorney " an honest 
lawyer." 

Boydell v. Jones, 4 M. & W. 446 ; 1 H. & H. 408 ; 7 Dowl. 210. 
It is actionable to say ironically : — " Yon will not play the Jew or the 
hypocrite." 

R. V. Garret (Sir Baj)tist Hicks' Case), Hob. 215 ; Popham, 139. 
Ii'onical advice to the Lord Keeper by a country parson, " to be as wise 
as Lord Somerset, to manage as well as Lord Haversham, to love the church 
as well as the Bishop of Salisbury," &c., is actionable. 
B. V. Dr. Brotvn, 11 Mod. 86 ; Holt, 425. 



5. Words incapable of a defamatory meaning. 

But where the words can bear but one meauiug, and 
that is obviously not defamatory, then no innuendo or 
other allegation on the pleadings can make the words 
defamatory ; the Statement of Claim is demm-rable ; and 
should the defendant not see fit to demur, still the judge 
at the trial Avill nonsuit the plaintiff and not permit the 
case to go to the jury. No parol evidence is admissible 
to explain the meaning of ordinary English words, in 
the absence of special circumstances showing that in the 
case before the Court the words do not bear their usual 
signification. "It is not right to say that a judge is i<i 
affect not to know what everybody else knows — the 
ordinary use of the English language." {Fcr Brett, J., 
1 C. P. D. 572.) The fact that actual damage has in 
fact followed from the publication is immaterial in con- 
sidermg what is the true construction of the libel. {Ver 
Lord Coleridge, C.J., 2 C. P. D. 150.) 



WORDS CLEARLY INNOCENT. 117 



Illustrations. 

Words complained of : — " He was the ringleader of the nine hours' 
system." " He has ruined the town by bringing about the nine hours' 
system," &c. The declaration contained no innuendo, and no sufficient 
averment that the words were spoken of the plaintiff in the way of his 
trade, and on demurrer, was held bad. 

Miller v. David, L. R. 9 C. P. 118 ; 43 L. J. C. P. 84 ; 22 AV. 
Fv. 332 ; 30 L. T. 58. 

"Words complained of : — " We are requested to state that the honorary 
secretary of the Tichborne Defence Fund is not and never was a captain 
in tlie Eoyal Artillery as he has been erroneously described." Inniiendo, 
that the plaintiff was an impostor, and had falsely and fraudulently re- 
presented himself to be a captain in Royal Artillery. Bovill, C.J., held 
that the words were not reasonably capable of the defamatory meaning 
ascribed to them by the innuendo, and nonsuited the plaintiff". Held 
that the nonsuit was right. 

Hunt V. Goodlah, 43 L. .J. C. P.-54 ; 29 L. T. 472. 

The plaintiff was a certificated art master, and had been master at the 
Walsall Science and Art Institute. His engagement there ceased in 
June, 1874, and he then started, and became master of, another school 
which was called " The Walsall Government School of Art," and was 
opened in August. In September the following advertisement a]ipeared 
in the Walsall Observer, signed by the defendants as chairman, treasurer 
and secretary of the Institute respectively: — "Walsall Science and Art 
Institute. The public are informed that Mr. Mulligan's connection with 
the Institute has ceased, and that he is not authorized to receive sub- 
scriptions on its behalf." The declaration set out this advertisement with 
an innuendo, — "meaning thereby that the plaintiff falsely assiimed and 
pretended to be authorized to receive subscriptions on behalf of the said 
Institute." At the trial Quain, J., directed a nonsuit on the ground that 
the advertisement was not capable of the defamatory meaning attributed 
by the innuendo : — Held that the nonsuit was right ; that the advertise- 
ment was not capable of any defamatory meaning. 

MnlUijan v. Cole and others, L. R. 10 Q. B. 549 ; 44 L. J. Q. B. 
153 ; 33 L. T. 12. 



iiS CONSTRUCTION AND CERTAINTY. 



Certainty. 

But even where the meaning of the defendant's words 
is clear or has been ascertained, the question remains : — 
Has he said enough ? "Was the imputation sufficiently 
definite to injure the plaintiff's reputation ? Is it clear 
that it is the plaintiff to whom he referred ? Unless 
these questions can be answered in the affirmative, no 
action lies. There must be a specific imputation cast on 
the person suing. 

This is clearly only a part of the construction of the words ; 
but it is convenient to collect the cases under a separate head, 
which may be denoted by the well-known pleading phrase 
Certainty. Often the only question of construction arising in a 
case may be one of certainty. 

The Court formerly expected to be assisted in dealing with these 
questions by a variety of minute averments in the plaintiff's decla- 
ration. Thus, it was necessary that there should be a colloquium, 
an averment that the defendant was speaking of the plaintiff, 
as well as constant innuendoes in the statement of the words 
themselves, "he (meaning thereby the plaintiff)." So, too, 
many other allegations were required describing the locality, 
the relationship between the various persons mentioned, and 
all the surrounding circumstances necessary to fully understand 
the defendant's words. And these matters could not properly 
be proved at the trial unless they were set out on the record ; 
or if they were, and the plaintiff had a verdict, the Court would 
subsequently arrest judgment, on the ground that it did not 
appear clearly on the face of the record that the words were 
actionable. And this technicality was carried to an absurd 
extent. Thus, where the defendant said, " Thou art a murderer, 
for thou art the fellow that didst kill Mr, Sydnam's man," the 
Court of Exchequer Chamber, on error brought, arrested judg- 
ment, because there was no averment that any man of Mr. 
Sydnam's had in fact been killed. Barrons v. Ball (1614), 
Cro. Jac. ool. See Ratcliff v. Micliael, ib., and Upton v. 
Puifold, Comyn, 207. (Had the words been "and thou art," 



INTRODUCTORY AVERMENTS. 119 

instead of "for thou art," the plaintiff would probably have 
been allowed to recover. See Minors v. LeeforJ, Cro. Jac. 
114.) Again, in Ball v. Roane (1593), Cro. Eliz. 308, the 
words were : — " There was never a robbery committed within 
forty miles of Wellingborough, but thou hadst thy part in it." 
After a verdict for the plaintiff, the Court arrested judgment, 
" because it was not averred there was any robbery committed 
within forty miles, &c., for otherwise it is no slander." So in 
Foster v. Broivniiig (1625), Cro. Jac. 688, where the words 
were, "Thou art as arrant a thief as any is in England," the 
Court arrested judgment, because the plaintiff had not averred 
"that there was any thief in England." See also Johnson v. 
Sir John Aylmer, Cro. Jac. 126 ; Sir Thomas Holt v. Astrigg, 
Cro. Jac. 184 ; Sloconib's Case, Cro. Car. 442. But the climax 
was reached in a case cited in Dacy v. Clinch (1661), Sid. 53, 
where the defendant had said to the plaintiff, "As sure as God 
governs the world, or King James this kingdom, you are a 
thief." After verdict for the plaintiff, the defendant moved in 
arrest of judgment, on the ground that there was no averment 
on the record that God did govern the world, or King James 
this kingdom. But here the Court drew the line, and held 
that "these things were so apparent," that neither of them need 
be averred. And even in the present century, instances of 
similar technicality are not wanting, though their absurdity is 
not so flagrant. Thus, in Solomon v. Laivson, 8 Q. B. 823 ; 15 
L. J. Q. B. 253 ; 10 Jur. 796, the libel consisted of two letters 
to the Times ; the first made a charge generally on " the 
authorities " at St. Helena ; the second letter brought it home 
to the plaintiff in particular. Neither letter was thus a com- 
plete libel in itself. In the first count of the declaration the 
first letter was fully set out ; in the second count hoth letters 
were set out verbatim. The first count was held bad, because 
it set out only half the libel. The second count was also held 
bad, because the pleader in setting out the first letter for the 
second time had introduced it with the words " in substance as 
follows." The Court decided that it ought to have been set out 
verbatim : so it was ; but because the pleader sccid he had only 
set out the substance, judgment was arrested. Lord Denman 
would, it seems, have given judgment for the plaintiff, had the 
pleader used the word " tenour," instead of "substance.'' So, 



I20 CONSTRUCTION AND CERTAINTY. 

too, in Angle v. Alexander, 7 Bing. 119 ; 1 Cr. & J. 143; 4 
M. & P. 870 ; 1 Tyrw. 9 ; the words were thus set out with 
innuendoes in the declaration, " You (meaning the said plaintiff) 
are a regular prover under bankruptcy (meaning that the said 
plaintiff was accustomed to prove fictitious debts under com- 
missions of bankruptcy) ; you are a regular bankrupt maker ; 
if it was not for some of your neighbours, your shop would look 
queer." And the Court arrested judgment because there was 
no prefatory averment that the defendant had been accustomed 
to employ the words " prover under bankruptcy," in the mean- 
ing set out in the innuendo. See also Goldstein v. Foss mid 
another, 6 B. & C. 154 ; 4 Bing. 489 ; 9 D. & R. 197 ; 2 C. & 
P. 252; 1 M. & P. 402; 2 Y. & J. 146 ; and other cases cited, 
ante, p. 104. 

But now, by s. 61 of the Common Law Procedure Act, 1852, 
the colloquium and alf other such frivolous averments are 
rendered unnecessary ; and Order XIX. r. 4, requires that only 
material facts need be stated in the pleadings. The pleader 
must judge what facts are material ; and he will also insert 
averments, which, though not essential, will help to make the 
case clear, by explaining what is to follow (as in Foulger v. 
Neivcomh, L. R. 2 Ex. 327; 36 L. J. Ex. 169 ; 15 W. R. 1181 ; 
16 L. T. 595). But where the plaintiff is suing for words 
spoken of him in the way of his oflfice, profession, or trade, 
there it is absolutely necessary to aver that at the time when 
the words were spoken the plaintiff held such office or carried 
on such profession or trade. And there should also be an aver- 
ment that the words were spoken by the defendant with refer- 
ence to such office, profession, or trade. 

1. Certainty of the imputation. 

Where words are sought to be made actionable, as 
charging the plaintiff with the commission of a crime, we 
have seen that an indictable offence must be specifically 
imjDuted. It will not be sufficient to prove words which 
only amount to an accusation of fraudulent, dishonest, 
vicious, or immoral conduct, so long as it is not criminal ; 
or of a mere intention to commit a crime, not evidenced 



CHARGES OF CRIME. 121 

by any overt act. But still it is not necessary that the 
alleged crime should be stated with all the technicality 
or precision of an indictment ; if the crime be imputed in 
the ordinary language usually employed to denote it in 
lay conversation. All that is requisite is that the by- 
standers should clearly understand that the plaintiif is 
charged with the commission of a specific crime. " The 
meaning of the words is to be gathered from the vulgar 
import, and not from any technical legal sense." {Per 
BuUer, J., in Colman v. Godzvin^ 3 Dougl. 91 ; 2 B. & 
C. 285 (n.)). 

Illustrations. 

Treason. 

The following words have been held sufficiently definite to constitute a 
charge of treason, or at least of sedition, and therefore actionahle : — 
Thy master is " no true subject." 

Waldegrave v. Agas, Cro. Eliz. 191. 

Sed qucere, Foivler v. Aston, Cro. Eliz. 268 ; 1 Roll. Abr. 43. 
" He consented to the late rebels in the North." 

Stcqyleton v. Frier, Cro. Eliz. 251. 
" Thou art a rebel, and all that keep thee company are rebels, and thou 
art not the Queen's friend." 

Redston v. Eliot, Cro. Eliz. 638 ; 1 Roll. Abr. 49. 
" Thou art an enemy to the State." 

Charter v. Peter, Cro, Eliz. 602. 
" He has the Pretender's picture in his room, and I saw him drink 
his health. And he said he had a right to the Crown." 
Fry V. Came (1724), 8 Mod. 283. 

How V. Prin (1702), Holt, 652 ; 7 Mod. 107 ; 2 Ld. Raym. 812; 
2 Salk. 694 ; 1 Brown Py. C. 64. 
But to say merely " Thou art a rebel," was adjudged not actionable. 
Fountain v. Rogers (1601), Cro. Eliz. 878. 

Murder, 

So it is a sufficient charge of murder to say : — 
" Thou hast killed thy master's cook." 

Cooper V. Smith, Cro. Jac. 423 ; 1 Roll. Abr. 77. 
" I am thoroughly convinced that you are giiilty of the death of Daniel 
Dolly, and ratlier than you should want a hangman, I will be your execu- 
tioner." 

Peake v. Oldham, Cowp. 275 ; 2 Wm. Bl. 959. 



122 CONSTRUCTION AND CERTAINTY. 

But it is not sufficient to say : — 
"Hext scel^s my life." "Because he may seek his life lawfully upon 
just cause." 

Ilcxt V. Ycoma'n&, 4 Rep. 15. 
" He was the cause of the death of Dowlancl's child," because a man 
might innocently cause the death of another by accident or misfortune. 
Milhr V. BucMon, 2 Buls. 10. 
" Thou wouldst have killed me," for here a murderous intention only 
is imputed. 

Dr. Poe's Case, 1 Yin. Abr. 440, cited in 2 Buls. 206. 

Forgery. 

The following words have been held a sufficient charge of forgery : — 
" This is a counterfeit warrant made by Mr. Stone." 

Stone V. Smalcomhe, Cro. Jac. 648. 
" Thou hast forged a privy seal, and a commission." Per cur. " ' A com- 
mission ' shall be intended the king's commission, imder the privy seal." 
Baal V. Baggerley, Cro. Car. 326. 
" You forged my name," although it is not stated to what deed or instru- 
ment. 

Jones V. Heme, 2 Wils. 87. 

Overruling Anon, 3 Leon. 231 ; 1 Roll. Abr. 65. 

Larceny. 

The following words are a sufficient charge of larceny : — 
" Baker stole my box-wood, and I will prove it." It was argued that it 
did not appear from the words that the box-wood was not growing ; and 
that to cut down and remove growing timber is a trespass only, not a 
larceny. But Holt, C. J., gave judgment for the plaintiff. 

Baker v. Pierce, 6 Mod. 234 ; 2 Salk. 695 ; Holt, 654 ; 2 Ld. 

Raym. 959. 
Overruling Mason v, Thom^oson, Hutt, 38. 
" Thou hast stolen our bees, and thou art a thief." After verdict it 
was contended that larceny cannot be committed of bees, unless they be 
hived ; but the Court lield that the subsequent words " thou art a thief" 
showed that the larceny imputed was of such bees as could be stolen. 
Tibhs V. Smith, 3 Salk. 325 ; Sir Thos. Raym. 33. 
Minors v. Leeford, Cro. Jac. 114. 
So a cliarge of being " privy and consenting to " a larceny is actionable. 

Mot et ux. V. Butler, Cro. Car. 236. 
" He is a pickpocket ; he picked my pocket of my money," was once 
held an iusuflicient charge of larceny. 

Watts V. Byrnes, 2 Lev, 51 ; 1 Yentr. 213 ; 3 Salk. 325. 
But now this would clearly be lield sufficient. 
Baker v. Pierce, supra. 
Stebbing v. Warner, 11 Mod. 255. 



CHARGES OF CRIME. 123 

Eeceiving Stolen Goods. 

To say " I liave been robbed of three dozen winches ; you bought two, 
one at 3s., one at 2s. ; you knew well when you bought them that they 
cost me three times as much making as you gave for them, and that 
they could not have been honestly come by," is a sufficient charge of 
receiving stolen goods, knowing them to have been stolen. 

[An indictment which merely alleged that the prisoner knew the 
goods were not honestly come by would be bad. R. v. IVilson, 2 Mood. 
C. C. 52.] 

Alfred v. Farlow, 8 Q. B. 854 ; 15 L. J. Q. B. 258 ; 10 Jur. 714. 

Clarke's Case de Dorchester, 2 Rolle's Rep. 13(5. 

Kincf V. Bagg, Cro. Jac. 331. 

Bigamy. 

Mrs. Heming was sister to Mr. AUeyne. The defendant said : — " It 
has been ascertained beyond all doubt that Mr. Alleyne and Mrs. Heming 
are not brother and sister, but man and wife." Held that it was open 
to the jury to construe this as a charge of bigamy, as well as of incest. 
Heming and luife v. Power, 10 M. & W. 564. 

Perjurg. 

" You are forsworn " without more, is insufficient. 
Stanhope v. Blith (1585), 4 Rep. 15. 
Holt V. Scholefield, 6 T. R. 691. 
Hull V. JFeedon, 8 D. & R. 140. 
But to say they " did not scruple to turn affidavit-men," is sufficient. 

Poach V. Peed and Hnggonson (1742), 2 Atk. 469 ; 2 Dick. 794. 
" Thou art forsworn in a court of record, and that I will prove ! " 
was held sufficient ; though it Avas argued after verdict that he might 
only have been talking in the court-house and so forsworn himself ; but 
the Court held that the Avords would naturally mean forsAvoru while 
giving evidence in some judicial proceeding in a court of record. 
Ceelg v. Hoshins, Cro. Car. 509. 

False Pretences. 

The words " He has defrauded a mealman of a roan horse," held not 
to imply a criminal act of fraud ; as it is not stated that the mealman 
was induced to part with his j^roperty by means of any false pretence. 
Richardson v. Allen, 2 Chit. 657. 

Attempt to Commit a Felony. 

The following words were held sufficient : — 
" He sought to murder me and I can ])rove it." 

Preston v. Pinder, Cro. Eliz. 308. 
" She would have cut her husband's tliroat and did attempt it." 

Scot et lu:. v. Hilliar, Lane, 98 ; 1 Vin. Abr. 440. 



124 CONSTRUCTION AND CERTAINTY. 

The following insufficient : — 
" Thou wouklst have killed me." 

Br. Poe's Case, cited in Murrey's Case, 2 Bills. 206 ; 1 Vin. Alu. 
440. 
" Sir HaiLert Croft keepeth men to roL me." 

Sir Harbcrt Croft v. Ilrou-n, 3 Buls. 167. 
" He would have robbed me." 

Stoner v. Audely, Cro. Eliz. 250. 
For here no overt act is charged, and raere intention is not criminal. 

Other instances of a criminal charge indirectly made will be found in 
Stiell V. TFeUing, 2 Lev. 150 ; 1 Vent. 276. 
Clerk V. Dyer, 8 ]\lod. 290. 
Woolnoth V. Meadows, 5 East, 463 ; 2 Smith, 28. 

Where words clearly refer to the plaintiff's office and 
his conduct thereia, or otherwise clearly touch and 
injure him therein, it is unnecessary that the defendant 
should expressly name his office or restrict his words 
thereto; it shall be intended that he was speaking of 
him in the way of his office or trade. 

Illustrations. 

To say of a clerk, " He cozened his master " is actionable, though the 
defendant did not expressly state that the cozening was done in the 
execution of the clerk's official duties ; that will be intended. 
Beignald's Case (1640), Cro. Car. 563. 
Beeve v. Holgate (1672), 2 Lev. 62. 
To say of a trader, " he has been arrested for debt " is actionable, 
though no express reference be made to his trade at the time of publi- 
cation ; for such words must necessarily affect his credit in his trade. 
Jones V. Littler, 7 M. & W. 423 ; 10 L. J. Ex. 171. 

It is not necessary that the defendant should in so 
many words expressly state the j)laintLff has committed a 
particular crime. So, where a charge is made against a 
trader, it need not be conveyed in positive and dii'ect 
language. Any words which distinctly assume or imply 
the plaintiff's guilt, or raise a strong suspicion of it in 
the minds of the hearers, are sufficient. But words 
merely imputing to the plaintiff' a criminal intention or 



INDIRECT IMPUTATIONS. 125 

design are not actionable, so long as no criminal act iis 
directly or indirectly assigned. So, too, words of more 
suspicion, not amounting to a charge of felony, are not 
actionable. 

Illustrations. 

The following words have been held to convey an imputation with 
sufficient certainty and precision : — 

" I believe all is not well with Daniel Vivian ; there be many mer- 
chants who have lately failed, and I expect no otherwise of Daniel 
Vivian ; " for this is a charge of present pecimiary embarrassment. 
Vivian v. Willet, 3 Salk. 326 ; Sir Thos. Eaym. 207. 
"Two dyers are gone off, and for aught I know Harrison will be so 
too within this twelvemonth." 

Harrison v. Thornborouyh, 10 Mod. 196 ; Gilb. Gas, 114. 
" He has become so inflated with self-importance by the few hundreds 
made in my service— God only knoAvs whether honestly or otherwise ; " 
for this is an insinuation of embezzlement. 

Clegg v. Laffer, 3 Moore & Sc. 727 ; 10 Bing. 250. 
" I think in my conscience if Sir John might have his will, he would kill 
the king ; " for this is a charge of compassing the king's death. 
Sulnamv. Mayo, 1 Roll. Rep. 427 ; Cro. Jac. 407, 
Peake v. Oldham, Gowp. 275 ; 2 Wm. Bl. 959, ante, p, 121. 
To state that criminal proceedings are about to be taken against the 
plaintiff {e.g., that the Attorney-General had directed a certain attorney 
to prosecute him for perjury,) is actionable, although the speaker docs 
not expressly assert that the plaintiff is guilty of the charge. 
Roberts v. Camden, 9 East, 93. 
Tempest v. Chambers, 1 Stark. 67. 
Bell v. Byrne, 13 East, 554. 

Contra Harrison v. King, 4 Price, 46 ; 7 Taunt, 431 ; 1 B. & 
Aid. 161. 
So where the defendant on hearing that his barns were burnt down, 
said, " I cannot imagine who it should be but the Lord Sturton." 
Lord Sturton v. Chaffin (1563), Aloore, 142. 
But where the defendant said, "I have a suspicion that you and B. 
have robbed my house, and therefore I take you into custody," the jury 
fuund that the words did not amount to a direct charge of felony, but 
only indicated what was passing in defendant's mind. 

Tozer v. Mashford, 6 Ex. 539 ; 20 L. J. Ex. 225. 
Williams v, Gardiner, 1 M. & W. 245 ; 1 Tyr. & Gr. 578, 
No action lies for such words as " Thou deservest to be hanged," for 
here no fact is asserted against the plaintiff. 
Hake v. Molton, Roll. Abr. 43, 
Cockaine v. Hopkins, 2 Lev. 214. 
But it is actionable to say :— " I am of opinion that such a Privy Conn- 



126 CONSTRUCTION AND CERTAINTY. 

cillor is a traitor," or "I tliink such a judge is corrupt." Per Wyndliaui 
and Scroggs, JJ., and North, C.J., in 

Lord Townshcnd v. Dr. Hughes, 2 Mod. 166. 
So too if the charge incidentally slips into a conversation on another 
matter, an action lies ; as where the defendant said : — " Mr. Wingfield, 
you never thought well of me since Graves did steal my lamb ; " and it 
was held that Graves could sue. 

Graves' Case, Cro. Eliz. 289. 
Or, " I dealt not so rmkindly with you, when you stole my sack of 
corn." 

Cooper V. Hawkesioell, 2 Mod. 58. 
A libellous charge may be insinuated in a question : e.g., " We should 
be glad to know how many poj^ish priests enter the nunneries at 
Scorton and Darlington each week i and also how many infants are Ijorn 
in them every year, and w'hat becomes of them ? whether the holy 
fathers bring them up or not, or whether the innocents are murdered 
out of hand or not." Alderson, B., directed the jury that if they thoixglit 
the defendant by asking the question meant to assert the facts insinuated, 
the passage was a libel. 

li. V. Gathercole, 2 Lew. C. C. 255. 
So a slander may be conveyed in a (j[uestion and answer or in a series 
of questions and answers. 

Gainford v. Tule (1620), Cro. Jac. 536. 
Haywood v. Nayler (1636), 1 Roll. Abr. 50. 
Ward V. Reynolds (1714), cited Cowp. 278. 

A libellous charge may be sufficiently conveyed by a mere 
adjective. 

" Thou art a leprous knave." 

Taylor v. Perkins, Cro. Jac. 144 ; 1 Eoll. Abr. 44. 
" He is a bankrupt knave," spoken of a trader. 

Squire v. Johns, Cro. Jac. 585. 
" Thou art a broken fellow." 

A71071, Holt, 652. 
" He is perjured," or '■' mainsworn." 

Vroford v. Blisse, 2 Buls. 150. 
" A libellous journalist," a phrase which will be taken to mean that 
the plaintiff habitually publislies libels in his paper, not that he once 
published one liliel merely. 

Waldey v. Cooke and Heale.y, 4 Exch. 511 ; 19 L. J. Ex. 91. 

So, if the plaintiff is obviously only repeating gossip, not 
asserting the charge as a fact within his own knowledge. 

" I heard you had run away " {sc. from your creditors). 
-Dam V. Lewis, 7 T. R. 17. 



CERTAINTY AS TO THE PERSON. 127 

" Thoit art a sheep-stealing rogue, and Farmer Parker tolil me so." 

Gardiner v. Atirater, Sayer, 265. 
" One told me that lie heard say that Mistress Meggs had poisoned her 
&-st husband.-" 

3fegcjs v. Griffith (vel Griffin), Cro, Eliz. 400 ; Moore, 408. 

Read's Case, Cro. Eliz. G45. 
" Did you not hear that C. is guilty of treason." 

Per cur. in Earl of Northampton's Case, 12 Reji. 134. 

2. Certainty as to tJie Person defamed. 

The defamatory words must refer to some ascertained 
or ascertainable person, and that person must be the 
plaiutiif. 

If the words used really contain no reflection on any 

particular individual, no averment or innuendo can make 

them defamatory. 

Illiistvation. 

"Suppose tlie words to be 'a murder was committed in A.'s house last 
night ; ' no introduction can warrant the innuendo ' meaning that B. 
committed the said murder ; ' nor would it be helped by the finding of 
the jury for the plaintiff. For the Court must see that the words do 
not and cannot mean, it, and would arrest the judgment accordingly. 
Id certain est, quod certum reddi potest ." Per Lord Denman, C.J., in 

Solomon v. Lav:son, 8 Q. B. 837 ; 15 L. J. Q. B. 257 ; 10 Jur. 
796. 
"If a man wrote that all lawyers were thieves, no particular lawyer 
could sue him, unless there is something to point to the particular 
individual." Per Willes, J., in 

Eastwood V. Holmes, 1 F. & F. 349. 
To assert that an acceptance is a forgery is no libel on the drawer, 
unless it someliow appear that it was he who was charged with forging it. 

StocMey v. Clement, 4 Bing. 162 ; 12 Moore, 376. 
Tlie defendant in a sj^eech commented severely on the discipline of 
the Eoman Catholic church, and the degrading punishments imposed on 
penitents. He read from a paper an account given by three policemen 
of the severe penance imposed on a poor Irishman. It appeared inci- 
dentally from this report that the Irishman had told the policemen that 
his priest Avould not administer the Sacrament to him till the penance 
was performed. The plaintiff averred that he was the Irishman's priest, 
but it did not appear how enjoining such a penance on an Irishman 
would affect the character of a Roman Catholic priest. The alleged lihel 
was in no other way connected with the plaintiff. Held no libel, and 
no slander, of the plaintiff. 

Hearne v. StoKell, 12 A. & E. 719 ; 6 Jur. 458 ; 4 P. & D. 696. 



128 CONSTRUCTION AND CERTAINTY. 

Tliougli tlie words used may at first sight appear only 
to apply to a class of individuals, and not to be specially 
defamatory of any particular member of that class, still 
an action may be maintained by any one individual of 
that class who can satisfy the jury that the words 
referred especially to himself. The words must be 
capable of bearing such special application, or the judge 
should stop the case. And there must be an averment 
in the Statement of Claim, that the words were spoken 
of the plaintiff. The plaintiff may also aver extraneous 
facts, if any, showing that he was the person expressly 
referred to. 



Formerly it was absolutely necessary, as we have seen, to 
overload the pleadings with averments, such as, that the defen- 
dant was talking to J. S. about the plaintiff and about the 
plaintiff's conduct in and about a certain matter ; and that in 
the course of such conversation he spoke of and concerning the 
plaintiff, and of and concerning the said matter, the words 
following — that is to say, &c. A great many other details had 
to be formally set out in order to support the subsequent brief 
innuendo, " he (meaning the pkiintiff)." And then, too, the 
introductory averments had to be properly connected with the 
innuendo ; or their presence was of no avail. Clement v. 
Fisher, 7 B. & C.,459 ; 1 M. & K 281. But now all such pit- 
falls are removed by Common Law Procedure Act, 1852, s. 61. 
No such averments are any longer necessary ; the innuendo aloue 
is sufficient. " The old decisions which support the argument 
that an innuendo cannot be allowed to make persons certain 
who were uncertain before, are not now sustainable." Po' 
Coltman, J., in Turner v. Meryweather, 7 C. B. 2ol ; 18 L. J. 
C. P. 155 ; 13 Jur. 683 ; and in error, 19 L. J. C. P. 10. And 
the decision of the jury on the point is fiual. After a verdict 
for the plaintiff, the defendant can no longer argue that it does 
not sufficiently appear to whom the words relate. 

And this is no breach of the rule that the office of the 
innuendo is to explain and not to extend the sense of the 
defamatory matter. For here the innuendo does not extend 



CERTAINTY AS TO THE PERSON. 129 

the meaning, it only points out the particular individual to 
whom the matter in itself defamatory does in fact apply. 

So, if the words spoken or written, tliougli plain in 
themselves, apply equally well to more persons than one, 
evidence may be given both of the cause and occasion of 
publication, and of all the surrounding circumstances 
affecting the relation between the parties, and also of any 
statement or declaration made by the defendant as to the 
person referred to. The plaintiff may also call at the trial 
his fi'iends or those acquainted with the circumstances, to 
state that on reading the libel they at once concluded 
that it was aimed at the plaintiff. [Bourke v. Warren^ 
2 C. & P. 307 ; Broome v. 'Oosden, 1 C. B. 728.) If the 
application to a particular individual can be generally 
perceived, the publication is a libel on liim, however 
general its language may be, "Whether a man is called 
hyoiie name, or whether he is called by another, or 
whether he is described by a pretended description of a 
class to which he is kno^^ai to belong, if those who look 
on know well who is aimed at, the very same injury is 
inflicted, the very same thing is in fact done, as would 
be done if his name and Chi'istian name were ten times 
repeated." {Per Lord Campbell, C.J., in Le Fanu and 
another v. Malcolmson^ 1 H. L. C. 668.) 

Where the libel consists of an effigy, picture, or caricature, 
care should be taken to show by proper innuendoes and aver- 
ments, the libellous nature of the representation and its especial 
reference to the plaintiff. It is often in such cases difficult for 
the plaintiff to prove that he is the person caricatured. 

. Illustrations. 

Words complained of : — "We would exhort the medical officers to avoid 
the traps set for them Ly desperate adventurers, (innuendo, thereby- 
meaning the plaintiff among others,) who, i)articipating in their efforts, 
would inevitably cover them -with ridicule and disrepute." The jury 

K 



I30 CONSTRUCTION AND CERTAINTY. 

found tliat the words were iutended to apply to the plaintiff. Judgment 
accordingly for the plaintiff. 

Walleij V. Healeij, 7 0. B. 591 ; 18 L. J. C. P. 241. 
A newspaper article imputed that " in some of the Irish factories " 
cruelties were practised upon the workpeoijle. Innuendo " in the factory 
of the plaintiffs " who were manufacturers. The jury were satisfied that the 
newspaper was referring especially to the plaintiffs' factory, and foimd a 
verdict for the plaintiffs, and the House of Lords held the declaration good. 
Le Fanu and another v. Malcolmson, 1 H. L. C. 637 ; 13 L. T. 
61 ; 8 Ir. L. K. 418. 
If asterisks be put instead of the name of the party libeUed, it is 
sufficient that those who know the plaintiff should be able to gather 
from the libel that he is the person meant ; it is not necessary that all 
the world should understand it, so long as the meaning of the paragraph 
is clear to the plaintiff's acquaintances. 

Bourhe v. Warren, 2 C. & P. 307. 

Some libellous verses Avere written about " L y, the Bum ; " the 

Court was satisfied in spite of the finding of the jury that the words 
related to the plaintiff, a sheriff's officer. 

Levi V. Milne, 4 Bing. 195 ; 12 Moore, 418. 
" All the libellers of the kingdom know now that printing initial letters 
\\ill not serve the turn, for that objection has been long got over." Per 
Ld. Hardwicke in 

Boach V. Read and Hiujijonson (1742), 2 Atk. 470 ; 2 Dick. 794. 
There appeared in Mist's Weekly Journal an account professedly of 
certain intrigiies, &c. at the Persian Court, really, at the English. The 
late King George I. was described under the name of '"Merewits," George 
II. appeared as "Esreff," the Queen as "Sultana," whilst a most engag- 
ing portrait was drawn of the Pretender under the name of " Sophi." 
It was objected on behalf of the prisoner that there was no evidence 
that the author intended his seemingly harmless tale to be thus inter- 
])reted and applied : but the Court held that they must give it the same 
meaning as the generality of readers would undoubtedly put upon it. 
F. V. Clerk (1729), 1 Barnard, 304. 
If the defendant says " A. or B." committed such a felony, both A. and 
JJ., or either of them can sue, for both are brought into suspicion. 
Anon. 1 EoL Abr. 81. . 
In Falkner v. Cooper (1678), Carter, 55, the Court was divided on this point. 
" You or Harrison hired one Bell to forswear himself" Harrison can sue. 
Harrison v. Thornhorovgh, 10 Mod. 196 ; Gilb. Cas. in Law and 
Eq. 114. 
If a man says "My brother," or ''my enemy" is perjured, and hath 
only one brother or one enemy, such brother or enemy can sue ; but if 
he says " One of my brothers is perjured," and he hath several brothers, 
no one of them can sue [without special circumstances to show to which 
one he referred]. 

Jones v. Davers, Cro. EHz. 497 ; 1 Eoll. Abr. 74. 
Wiseman v. Wiseman, Cro. Jac. 107. 



I 



CERTALYTY AS TO THE PERSOX. 131 

So if a man says to the plaintiff's servant, " Tliy master Brown hath 
rv)bbed me," Brown can sue ; lor it shall not be intended that the person 
addressed had more than one master of the name of Brown. So if the 
defendant had said, " Thy master," simplkiter ; or to a son, " Thy lather," 
to a wife, " Thy husband." 

Per Haugliton, J., in Lewes v. Walter (1617), 3 Bulstr. 226. 
Broivn v. Low or Lane, Cro. Jac. 443 ; 1 Roll. Abr. 79. 
Waldecjrave v. Agas, Cro. Eliz. 191. 
But if the defendant said to a master, " One of thy servants hath 
robbed me," in the absence of special circumstances no one could sue ; 
I'or it is not apparent who is the person slandered. So where a party 
iii a cause said to three men who had just given evidence against him : 
' One of you three is perjured," no action lies. 

(Sir John Bourn's Case, cited Cro. Eliz. 497. 
Where the defendant said to his companion B. : — " He that goeth before 
thee is perjured,'' the plaintiff can sue, if he aver and prove that he was 
at that moment walking before B. 

Aish V. Gerish, 1 Roll. Abr. 81. 
A libel was published on a " diabolical character," who, "like Polyphe- 
mus, the man-eater, has but one eye, and is well known to all persons ac- 
([uainted with the name of a certain noble cii'cunmavigator." The plaintiff 
iiad but one eye, and his name was I' Anson ; so it was clear that he was 
the j)erson referred to. 

FAtisoii V. Stuart, 1 T. R. 748 ; 2 Smith's Lg. Cas. (6th ed.), 57, 

[omitted in 7th and 8th eds.] 
Fleetwood v. Curl, Cro. Jac. 557 ; Hob. 268. 

Words defamatory of A. may in some cases be also 
indirectly defamatory of B. 

Illustrations. 

Where a married man was called " cuckold " in the City of London, his 
wife cftuld sue ; for it was tantamount to calling lier " whore." 
Vicars v. Worth, 1 Stra. 471. 
HodgMns et ur. v. Corbet et ux., 1 Stra. 545. 
Slander addressed to plaintiff's wife : — "You are a nuisance to live 
[beside of. You are a bawd ; and your house is no better than a bawdy- 
house." Held that the plaintiff could maintain the tiction without joining 
his wife, and without proving special damage ; because if in fact his wife 
■ did keep a bawdy-house, the plaintiff" could be indicted for it. 
Huckle V. Reynolds, 7 C. B. (N. S.), 114. 

AYhere the words prima facie apply only to a fJiing^ 
and not to a person, still if the owner of the thing can 

K 2 



132 CONSTRUCTION AND CERTAINTY. 

show that the Avords substantially reflect upon him, he 
may sue, without giving proof of special damage and 
without proving express malice. 

Illustration. 

To write and puLlisli that plaintiff's ship is unseaworthy and has been 
sold to the Jews to carry convicts, is a libel upon the plaintiff in the way 
of his business, as well as upon his ship. 

Ingram v. Lausnn, 6 Bing. N. C. 212 ; 4 Jur. 151 ; 9 C. & P. 

326 ; 8 Scott, 471. 
Solomon v. Lawson, 8 Q. B. 823 ; 15 L. J. Q. B. 253 ; 10 Jur. 
796, and other cases cited, ante, pp. 32 — 34. 



CHAPTER IV. 

SCANDALUM MAGNATUM. 

By virtue of certain ancient statutes, words which, 
would not be actionable, if spoken of an ordinary subject, 
are actionable, if spoken of a peer of the realm, or of a 
judge, of any of the great officers of the Crown, even 
without proof of any special damage. 

It has been maintained that tliis privilege existed at the 
common law, independently of any statute ; and passages are 
generally cited from Reports in support of this opinion. But in 
the passages relied on, Lord Coke appears to me to be referring 
to criminal, and not to civil proceedings. And such a distinc- 
tion between nobles and commoners appears to me alien to the 
spirit of our common law. 

The following are the statutes referred to :—" Foras- 
much as there have been oftentimes found in the country 
devisors of tales, whereby discord or occasion of discord, 
hath many times arisen between the King and his people, 
or great men of this realm ; for the damage that hath 
and may thereof ensue ; it is commanded, that from 
henceforth none be so hardy to tell or publish any false 
news or tales, whereby discord, or occasion of discord or 
slander, may grow between the King and his people, or 
the great men of the realm ; and he that doth so, shall 
be taken and kept in prison, until he hath brought him 
into the court, which Avas the first author of the tale." 
(3 Edw. I. Stat. Westminster I. c. 34.) 



134 SC AND ALUM MAGNATUM. 

" Item, of devisors of false news, and of liorrible and 
false lyes, of prelates, dukes, earls, barons, and other 
nobles and great men of the realm, and also of the chan- 
cellor, treasurer, clerk of the privy seal, steward of the 
King's house, justices of the one bench or of the other, 
and of other great officers of the realm, of things which 
by the said prelates, lords, nobles and officers aforesaid, 
were never spoken, done, nor thought, in great slander 
of the said prelates, lords, nobles, and officers, whereby 
debates and discords might arise betwixt the said lords, 
or between the lords and the commons, which God 
forbid, and whereof great peril and mischief might 
come to all the realm, and quick subversion and destruc- 
tion of the said realm, if due remedy be not provided : 
It is straitly defended upon grievous pain, for to eschew 
the said damages and perils, that from henceforth none 
be so hardy to devise, speak, or to tell any false news, 
lyes, or such other false things, of prelates, lords, and of 
other aforesaid, Avhereof discord or any slander might 
rise within the same realm ; and he that doth the same 
shall incur and have the pain another time ordained 
thereof by the Statute of Westminster the Fu'st, which 
will, that he be taken and imprisoned till he have found 
him of whom the word was moved." (2 Eich. II. 
St. I. c. 5.) 

" Item, whereas it is contained, as well in the Statute 
of Westminster the First, as in the statute made at 
Gloucester, the second year of the reign of our lord the 
King that now is, that none bo so hardy to invent, to 
say, or to tell any false news, lies, or such other false 
things, of the prelates, dukes, earls, barons, and other 
nobles and great men of the realm, and also of the chan- 
cellor, treasui'er, clerk of the privy seal, the steward of : 
the King's house, the justice of the one bench or of the 
other, and other great officers of the realm, and he that 



I 



SCANDALUM MAGNATUM. 135 

dotli so shall be taken and imprisoned, till lie liath found 
him of whom the speech shall be moved : It is accorded 
and agreed in this Parliament, that when any such is 
taken and imprisoned, and cannot find him by Avhom 
the speech be moved, as before is said, that he be 
pimished by the advice of the council, notwithstanding 
the said statutes." (12 Eich. II. c. 11.) 

Although by these statutes no civil remedy is expressly given, 
yet the violation of these provisions entitles the great men of 
the realm to sue for damages, on the well-knoAvn principle, that 
if A. does an act expressly prohibited by statute, whereby B. is 
prejudiced, A. must compensate B. for such private injury. A. 
will also be liable to imprisonment for contempt on the informa- 
tion of the Attorney-General. 

All peers, whether of Great Britain or of Scotland 
(5 Anne, c. 8, s. 23), are mthin the statute; including 
a viscoimt, though such a title of honoiu' was unknown 
when the statute was passed. Viscount Say ^" Seal v. 
Stejjhens, Cro. Car. 135 ; Ley, 82. The King liimself 
is within the 3 Edw. I. c. 34 (12 Eep. 133); but not 
within 2 Eich. II. st. 1, c. 5, not being " a great man" 
of his own realm (Cromp. Author. 19, 35). A peeress 
is not within either statute (Cromp. Author. 34). A 
baron of the Exchequer (and now any judge of the 
Supreme Coui't of Judicature) is within the statutes. 
Of course the rank or dignity which entitles the plaintiff 
to sue in Scandalum 3Iagnatiim must have been attained 
before the words complained of were published. 

Although the words of the statute are " horrible and false 
hes," yet they have been strained to cover Avords which in no 
way affect the life or dignity of the peer, but which are merely 
uncivil expressions, expressing general disesteem for his lordship. 
For it is alleged that such expressions, though not likely to 
result in general discord, and the " quick subversion of the 



136 SCANDALUM JMAGNATUM. 

realm," yet impugn and vilify the honour of the nobles, and 
tend to provoke to a breach of the peace. [But see the remarks 
of Atkins, J., in 2 Mod. 161 — 165. Lord Tovmsliend v. Dr. 
Hughes.] The words also were supposed to echo through the 
kingdom, being spoken of a peer of the realm ; and the plaintiff, 
therefore, had this further privilege that he could lay the venue 
where he pleased, and was not bound like an ordinary plaintiff 
to try in the county where the words were spoken. 

Illustration. 

Words complained of : — " I value my Lord Marquess of Dorchester no 
more than I xslwe the dog at my foot." Held that the action was well laid 
in Scandalum Magnatum, the plaintiff being a Marquess. But a private 
j)erson would have had no action for such words without proof of special 
damage, as they merely show the esteem in which the defendant held him. 

Proby V. Marquess of Dorchester (m error), 1 Levinz, 148. 

Lord Falkland v. Pliip^s, 2 Comyns, 439 ; 1 Vin. Abr. 549. 

But the civil proceeding under these statutes is now quite 
obsolete. This may be, as alleged in Russell on Crimes, 5th 
cd., vol. iii., p. 203, n., because the nobility prefer "to waive 
their privileges in any action of slander, and to stand upon 
the same footing, with respect to civil remedies, as their 
fellow subjects." Or it may possibly be due to the decision in 
Lord: Peterhorougli v. Williams, 2 Shower, 506, or in Butt's ed., 
23. 650, that in scandalum magnatum no costs are to be given 
to the plaintiff, though the verdict be for him. I believe no 
•such action has been brought since 1710. {The Duke of 
Richmond v. Costeloiv, 11 Mod. 235.) 



CHAPTER Y. 

SLANDER OF TITLE, OR WORDS CONCERNING THINGS. 

Words cannot be defamatory unless they directly 
affect some person ; either in his individual capacity, or 
in his office, profession, or trade. Sometimes no doubt 
an attack on a thing may be an indirect attack upon an 
individual; and may therefore be actionable, as defama- 
tory of him. Thus where the defendant said of the 
plaintiff: "He is a cheat; he has nothing but rotten 
goods in his shop;" this was rightly held a slander on 
the plaintiff in the way of his trade [Burnet \. Wells 
(1700) 12 Mod. 420); for the words clearly imputed 
that the defendant was aware of the imsatisfactory 
natiu-e of his wares, and yet continued to foist them on 
the public. So to charge a tradesman with wilfully 
adulterating the goods he sells is clearly an attack on 
him as well as on his goods, and would therefore be 
actionable without special damage. {Jesson v. Hayes 
(1636) EoU. Abr. 63. See also Ingram v. Laivson, 6 
Bing. N. C. 212 ; 8 Scott, 478, and other cases cited, 
ante pp. 32 — 34.) 

But wholly apart from these cases there is a branch of 
the law (generally known by the inappropriate but con- 
venient name — Slander of Title) which permits an 
action to be brought against any one who maliciously 
decries the plaintiff's goods or some other thing belong- 
ing to him, and thereby produces special damage to the 



138 SLAiYDER OF TITLE. 

j)laiiitiff. This is obviously no part of the Iuay of de- 
famation, for the phiintiif 's reputation remains uninjured; 
it is really an action on the case for maliciously acting 
in such a way as to inflict loss upon the plaintiff. All 
the preceding rules dispensing with proof of malice and 
sj)ccial damage are therefore wholly inapplicable to cases 
of this kind. Here, as in all other actions on the case, 
there must be ct damnum et injuria. The injuria consists 
in the unlawful words maliciously spoken, and the 
damnum is the consequent money loss to the plaintiff. 

I. Slander of title proper. 

"Where the plaintiff possesses an estate or interest in 
any real or personal property, an action lies against any 
one who maliciously comes forward and falsely denies or 
imjDugns the plaintiff's title thereto, if thereby damage 
follows to the plaintiff. [Pater v. Baker^ 3 C. B. 869 ; 
16 L. J. C. P. 124; 11 Jur. 370.) 

The statement must be false ; if there be such a flaw 
in the title as the defendant asserted, no action lies. 
And the statement must be malicious ; if it be made in 
the hand fide assertion of defendant's own right, real or 
supposed, to the property, no action lies. But whenever 
a man unnecessarily intermeddles with the affairs of 
others with which he is Avholly unconcerned, such 
officious interference will be deemed malicious and he 
will be liable, if damage follow. Lastly, special damage 
must be j)roved, and shown to have arisen from de- 
fendant's words. And for this it is general^ necessary 
for the plaintiff to prove that he was in act of selling 
his property either by public auction or private treaty, 
and that the defendant by his words prevented an 
intending purchaser from bidding or completing. {Tas- 
hirgJi V. Day; Cro. Jac. 481; Lowe y. Harewood', Sir 
W. Jones, 196 ; Cro. Car. 140.) So proof that plaintiff' 



SLAXDER OF TITLE. 139 

wished to let his lands and that the defendant prevented 
an intending tenant from taldng the lease will be suffi- 
cient. But a mere apprehension that plaintiff's title 
might be drawn in question, or that the neighboiu'S 
placed a lower yalue on plaintiff's lands in their own 
minds in consequence, the same not being offered for 
sale, will not be sufficient evidence of damage. " This 
action lietli not but by reason of the prejudice in the 
sale." (Per Fenncr, J., in Bold v. Bacon^ Cro. Eliz. 
346.) The special damage must always be such as 
naturally or reasonably arises from the use of the words. 
Haddon V. Lott, 15 C. B. 411 ; 24 L. J. C. P. 49 : see 
post, c. X. 

It makes no difference whether the defendant's words 
be spoken or written or printed ; save as aff'ecting the 
damages, which should be larger where the publication 
is more permanent or extensive, as by advertisement. 
{Malachy v. ^oper is another, 3 Bing. K. C. 371 ; 3 
Scott, 723; 2 Hodges, 217.) 

The property may be either real or personal ; and the 
plaintiff's interest therein may be either in possession or 
reversion. It need not be even a vested interest, so long 
as it is anything that is saleable or that has a market 
value. 

In one or two old cases it seems to have been held that no 
actual present damage need be proved. "The law gives an 
action for but a possibility of damage, as an action hes for calling 
an heir-apparent, 'bastard.'" Per Wylde, J., in Turner v. 
Sterling (1671), 2 Vent. 26 ; Anon. 1 Roll. Abr. 87. See 
Humfreys v. Stanfield or Btrid field (1688), Cro. Car. 469 ; 
God]). 451 ; Sir Wm. Jones, 888 ; 1 Roll. Abr. 38. Banister 
V. Banister, 4 Rop. 17. But even in Turner v. Sterling, 
Vaughan, C.J., says :— " I take it that 'tis not actionable to call 
a man bastard while his father is alive ; the books are cross in 
it." 2 Vent. 28. Both dicta, were merely ohiter. And in 
Onslov) v. Home, 8 Wils. 188 ; 2 W. Bl. 753, De Grey, C. J., 



140 SLANDER OF TITLE. 

sa3's : — " I know of no case Avhere ever an action for words was 
grounded upon eventual damages which may possibly happen to a 
man in a future situation." There is no case precisely in point 
since 1638 ; but the tendency of all modern decisions is against the 
view of Wylde, J., which must now, I think, be deemed obsolete. 
There is clearly no reason wh}- a man who has no estate in 
the lands, but only a mere expectancy, should be allowed an 
action, whilst he in whom an estate is vested must prove special 
damage or be nonsuited. Of course, if the heir-apparent has in 
fact been disinherited in consequence of defendant's words, the 
special damage is clear and the action lies. 

Illustrations. 

Lands were settled on D. in tail, remainder to the plaintiff in fee. D. 
Leing an old man and childless, plaintiff was about to sell his remainder to 
A., Avhen the defendant interfered and asserted that D. had issue. A. con- 
sequently refused to buy. Held that the action lay. 

Bliss V. Stafford, Owen, 37 ; Moore, 188 ; Jenk. 247. 

The plaintifi''s father being tenaut-in-tail of certain lands, which he was 
about to sell, the purchaser oflered the j^laintiff a sum of money to join in 
the assurance so as to estop him from attempting to set aside the deed, 
should he ever succeed to the estate taU ; but the defendant told the pur- 
chaser that the plaintiff was a bastard, wherefore he refused to give the 
plaintiff anything for his signature. Held that the plaintiff had a cause of 
action, though he was the youngest son of his father, and his chance of 
succeeding therefore remote. 

Vuughan v. Ellis, Cro. Jac. 213. 

Plaintiff succeeded to certain lands as heir-at-law; the defendant asserted 
that he was a bastard ; plaintiff was in consequence put to great expense to 
defend his title. 

Elbororv v. Allen, Cro. Jac. 642. 

The defendant falsely represented to the bailiff of a manor that a sheep of 
the plaintiff was an estray, in consequence of which it was wrongfully 
seized. Held that an action on the case lay against him. 
Newman v. Zachary, Aleyn 3. 

The plaintiff was desirous to sell his lands to any one who would bay 
them, when the defendant said that the plaintiff had mortgaged all his 
lands for £100, and that he had no power to sell or let the same. No 
special damage being shown, judgment was stayed. It was not proved 
that any one intending to buy plaintiff's lands heard defendant speak the 
words. 

Manning v. Avery (1674), 3 Keb. 153 ; 1 Vin. Abr. 553. 

The plaintiff was possessed of tithes which he desired to sell ; the defen- 
dant falsely and maliciously said : — " His right and title thereunto is 
nought, and I have a better title than he." As special damage it was 



SLANDER OF TITLE. 141 

alleged that the plaintiff " was likely to sell, and was injured by the words; 
and that by reason of the defendant's speaking the words, the plaintiff' could 
not recover his tithes." Helil insufiicient. 

Gam V. GoUing (1649), Style, 169, 176. 

Lawv. Hanmod (1629), Sir Wm. Jones, 196 ; Palm. 529 ; Cro. 
Car. 140. 
The j^laintift' was the assignee of a beneficial lease, whicli he expected 
would realize i!lOO. But the defendant, the superior landlord, came to the 
sale, and stated publicly : — " The whole of the covenants of this lease are 
broken, and I have served notice of ejectment ; the premises will cost £70 
to put them in repair." In consequence of this statement the property 
fetched only 35 guineas. Rolfe, B., left to the jury only one question, 
Was the defendant's statement true or false ? and they found a verdict for 
the jjlaintiff ; damages, £40. But the Court of Exchequer granted a new 
trial on the ground that two other questions ought to have been left to the 
jury as well: — Was the statement or any part of it made maliciously? 
and, Did the special damage arise from such malicious statement or from 
such jjart of it as was malicious I 

Brook V. Rmvl, 4 Exch. 521 ; 19 L. J. Ex. 114. 

And see Smith v. Spooner, 3 Taunt. 246. 

Milman v. Pratt, 2 B. & C. 486 ; 3 D. & R. 728. 
The plaintiff held 160 shares in a silver mine in Cornwall, which he said 
were worth £100,000. Tollervey and Hay ward each filed a bill in Chan- 
cery against the plaintiff" and others claiming certain shares in the mine, 
and praying for an account and an injunction, and for the appointment of 
a receiver. To these bills plaintiff demurred. Before the demurrers came 
on for hearing, a j)aragraph appeared in the defendant's newspaper to the 
effect that the demurrers had been overruled, that an injunction had been 
granted, that a receiver had been duly appointed, and had actually arrived 
at the mine ; all of which was quite untrue. A verdict having been 
obtained for the plaintiff", damages £5 ; the Court of Common Pleas arrested 
judgment on the ground that there was no sufficient allegation of special 
damage, and this, although the declaration contained averments to the 
eft'ect that " the plaintiff' is injured in his rights; and the shares so pos- 
sessed by him, and in which he is interested, have been and are much 
depreciated and lessened in value ; and divers persons have believed and 
do believe that he has little or no right to the shares, and that the mine 
cannot be lawfully worked or used for his benefit ; and that he hath been 
hindered and prevented from selling or disposing of his said shares in the 
said mine, and from working and using the same in so ample and beneficial 
a manner as he otherwise would have done." 

Malachtj v. Soper and another, 3 Bing. N. C. 383 j 3 Scott, 723 ; 
2 Hodges, 217. 

And see Hart and another v. Wall, 2 C. P. D. 146 ; 46 L. J. C. 
P. 227; 25 W. R. 373, ante, p. 34. 

It is iiot actionable for any man to assert liis own 



143 SLANDER OF TITLE. 

rights at any time. And eA'cn Avliere tlie defendant fails 
to prove such right on investigation, still if at the time 
he spoke he hond fide supposed such right to exist, no 
action lies. (Carr v. Ducketf, 5 H. & ]N^. 783; 29 L.J. 
Ex. 4G8.) Hence, whenever a man claims a right or 
title in himself, it is not enough for the plaintiif to 
prove that he had no such right; he must also give 
evidence of express malice (Smith v. Spooner, 3 Taimt. 
246); that is, he must also attempt to show that the 
defendant could not honestly have believed in the ex- 
istence of the right he claimed, or at least that he had 
no reasonable or probable cause for so believing. If 
there appear no reasonable or probable cause for his 
claim of title, still the jury are not bound to find malice ; 
the defendant may have acted stupidly, yet from an 
innocent motive. (Pitt v. Donovan, 1 M. & S. 648 ; 
StcM'ard V. Yoiin(/; L. E. 5 C. P. 122; 31) L. J. C. P. 
8-5 ; 18 ^y. E. 492 ; 22 L. T. 168 ; Clark v. Molyneux, 
3 Q. B. D. 237 ; 47 L. J. Q. B. 230; 26 W. E. 104 ; 
37 L. T. 694.) But in all cases where it appears that 
the defendant at the time he spoke knew that what he 
said was false, the jury should certainly find malice ; 
lies which injure another cannot be told hond fide. 
[Wufercr v. Freeman, Hob. 266.) 

The law is the same where the defendant is an agent 
or attorney, and claims for his principal or client a title 
which he honestly believes him to possess. [Hargrave 
V. Le Breton, 4 Burr. 2422 ; Steiuard v. Young, L. E. 5 
C. P. 122 ; 39 L. J. C. P. 85 ; 18 W. E. 492 ; 22 L. T. 
168.) So where a man hand fide asserts a title in his 
father or other near relative to whom he or his wife is 
heir apparent. [Pitt v. Donovan, 1 M. & S. 639 ; Giitsole 
Y. Mathers, 1 M. & W. 495 ; 5 Dowl. 69 ; 2 Gale, 64 ; 
1 Tyrw. & Gr. 694.) But where the defendant makes 
no claim at all for himself or au)^ connection of his, but 



MALICE 



143 



asserts a title in some one avIio is a stranger to liim ; here 
lie clearly is niecldliug in a matter which is no concern of 
his ; and such officious and unnecessary interference will 
be deemed malicious. [Pennyman y. liahanJcs^ Cro. Eliz. 
427 ; 1 Yin. Abr. 551. See Jenkins's Centuries, 247.) 
" If some portions of the statement Ayhicli a person 
makes are bond fidc^ but otliers are mala fide, and occa- 
sion injury to another, the injured party cannot recover 
damages unless he can distinctly trace the damage as 
resulting from that part ^vhich is made 7nald fide.'''' 
{Per Parke, B., in BrooJc v. Putivl, 4 Ex. 524.) So if 
part be true and part false, ih. 523. 

Illustrations. 

Plaintiff liad purcliased the manor and castle of H. in fee from Lord 
Audley, and was about to demise them to Ralj)!! Egerton for a term of 
twenty-two years, when the defendant, a widow, said, " I have a lease of 
the castle and manor of H. for ninety years ; " and she showed him what 
purported to he a lease from a former Lord Audley to her husljand for a 
term of ninety years. This lease was a forgery; but the defendant was not 
aware of it. Held that no action lay for slander of title ; for tlie defendant 
had claimed a right to the property herself. It would have been otherwise 
had she known the lease was a forgery. 

8ir G. Gerard v. Dickenson, 4 Eep. 18 ; Cro. Eliz. 197. 

And see Fitzli. Nat. Brev. 116 B. & D. 

Lovett V. JFeller, 1 EoU. 409. 
If the defendant asserts that plaintiff is a bastard, and that he himselt 
is the next heir, no action lies. 

Banister v. Banister (1683), 4 Rep. 17. 

Cane v. Golding (1649), Styles, 169, 176. 
Tlie plaintiff put up for sale by public auction eight unfinished houses in 
Agar Town. The defendant, a surveyor of roads appointed under the 
7 & 8 Vict. c. 84, had previously insisted that these houses were not being 
luiilt by the plaintiff' in conformity with the Act. He now attended the 
s;de and stated publicly, " I\Iy object in attending the sale is, to inform pur- 
.hasers, if there are any present, that I shall not allow the houses to be 
laii.shed until the roads are made good. I have no power to compel the 
purchasers to complete the roads ; but I have power to prevent them from 
completing the houses until the roads are made good." In consequence 
(jnly two of the carcasses were sold ; and they realized only £35 each, 
instead of £65. The jury found a verdict for the plaintiff for £18 12s. 
But the Court of C. P. held that there was no evidence of malice to go to 
tlu- jury. For malice is not to be inferred fruni the circumstance of the 



144 SLANDER OF TITLE. 

defendant having acted upon an incorrect view of his duty, founded upon 
an erroneous construction of the statute. 

Fater v. Baktr, 3 C. B. 831 ; 16 L. J. C. P. 124 ; 11 Jur. 370. 
Hargram v. Le Breton, 4 Burr. 2422. 
The plaintiff' was the widow and administratrix of her deceased husband, 
and advertised a sale of some of his property. Defendant, an old friend 
of the husband, thereupon put an advertisement in the papers offering a 
reward for the production of the will of the deceased. The defendant sub- 
sequently called on the solicitor of the deceased, and was assured by him 
there was no will ; but, in spite of this, the defendant attended at the sale 
and made statements which effectually prevented any person present from 
bidding. After waiting twelve months, the plaintiff again put the same 
property xip for sale, and defendant again stopped the auction. Cockburn, 
C. J., left it to the jury to say whether, after the interview with the plain- 
tiff's solicitor, defendant could still possess an honest and reasonable belief 
that the deceased had left a will. The jury found that he had not that 
belief. Verdict for the plaintiff. Damages, £54 7s. 
Atkins V. Perrin, 3 F. & F. 179. 
The defendant had a subsisting patent for the manufacture of spooling 
machines; so had the plaintiff. The defendant wrote to certain manufac- 
turers, customers of the plaintiff, warning them against using the plaintiff's 
macliine, on the ground that it was an infringement of the defendant's 
patent. Held that "tlie action could not lie unless the plaintiff affirmatively 
proved that the defendant's claim was not a bond fide claim in support of a 
right which, with or without cause, he fancied he had, but a maid fide and 
malicious attempt to injure the plaintiff by asserting a claim of right 
against his own knowledge that it was without any foundation." Evidence 
to show that tlie defendant's patent, though subsisting, was void for want of 
novelty, was not admitted, as being irrelevant in this action. 

Wren v. Weild, L. E. 4 Q. B. 73(\ 737 ; 10 B. & S. 51 ; 38 L. J. 

Q. B. 88, 327 ; 20 L. T. 277. 
And see Dicks v. Brooks, 15 Ch. D. 22 ; 49 L. J. C'h. 812 ; 29 

W. R 87 ; 40 L. T. 710 ; 43 L. T. 71. 
Ilaniniersmith Bkating Rink Co. v. Dublin Skating Eink Co., 10 
Ir. R. Eq. 235. 
But a patentee is not entitled to publish statements that he intends to 
institute legal proceedings in order to deter persons from purchasing alleged 
infringements of his patent, unless he does honestly intend to follow up 
such threats by really taking such proceedings. 

Rollms V. Hinks, L. R. 13 Eq. 355 ; 41 L. J. Ch. 358; 20 W. R. 

287 ; 26 L. T. 56. 
Axmann v. Lund, L. R. 18 Eq. 330 ; 43 L. J. Ch. 655 ; 22 

W. R. 789. 

Halsey v. Brotherhood, 15 Ch. D. 514 ; 49 L. J. Ch. 786 ; 29 

W. R. 9 ; 43 L. T. 366. 

A. died possessed of furniture in a beer-shop. His widow, without 

taking out administration, continued in possession of the beer-shop for 

three or four years, and then died, having whilst so in possession conveyed 



WORDS CONCERNING THINGS. 145 

all the furniture by bill of sale to her landlords by way of security for a 
debt she had contracted with them. After the widow's death, the plaintiff 
took out letters of administration to the estate of A., and informed the 
defendant, the landlords' agent, that the bill of sale was invalid, as the 
■widow had no title to the furniture. Subsequently the plaintiff was about 
to sell the furniture by auction, when the defendant interposed to forbid 
the sale, and said that he claimed the goods for his principals under a bill 
of sale. On proof of these facts, in an action for slander of title, the plain- 
tiff was nonsuited. Held that the mere fact of the defendant's having been 
told before the sale that the bill of sale was invalid, was no evidence of 
malice to be left to the jury, and that the plaintiff was therefore properly 
nonsuited. 

Steward v. Young, L. R. 5 C. P. 122 ; 39 L. J. C. P. 85 ; 18 
W. R. 492 ; 22 L. T. 168. 

And see Blackham v. Pmjh, 2 C. B. 611 ; 15 L. J. C. P. 290. 

II. Slander of Goods manufactured or sold hj another. 

" An untrue statement, disparaging a man's goods, 
published without lawful occasion, and' causing him 
special damage, is actionable." This is laid down as a 
general principle by Bramwell, B., in Western Counties 
Manure Company v. Lawes Chemical Manure Company.^ 
L. E. 9 Ex. 218, 222 ; 43 L. J". Ex. 171 ; 23 W. E. 5 ; 
and it applies although no imputation is cast on the 
plaintiff's private or professional character. Kor in the 
opinion of the same learned Judge is it necessary to 
prove actual malice ; it is sufficient if it be made " with- 
out reasonable cause." 

At the same time it is not actionable for a man to 
commend his own goods ; or to advertize that he can 
make as good articles as any other j)erson in the trade, 
(Harman v. Delamj, 2 Str. 898 ; 1 Barnard. 289 ; Eitz. 
121.) 

In Evans v. Harloiv (1844), 5 Q. B. 624 ; 13 L. J. Q. B. 
120 ; Day. & M. 507, wliich appears to be the earliest case of 
this kind, no special damage was alleged ; and the only point 
decided was that the words were not a libel on the plaintiff in 
the way of his trade, and that therefore no action lay. The 
Court did not expressly decide that, had special damage been 

L 



146 SLANDER OF TITLE. 

alleged, the declaration would have been good, though Patteson, 
J., was clearly of that opinion, as appears from his remarks on 
p. 633. These remarks were cited to the Court in the next 
case of the kind, Young v. Macrae, 3 B. & S. 264 ; 32 L. J. 
Q. B. 6 ; 11 W. R 63 ; 9 Jur. N. S. 539 ; 7 L. T. 354. But 
there the libel did not impute that the plaintiff's oil was bad 
in itself, but merely alleged that it was inferior to that of the 
defendant ; and, again, it was held that no action lay. Black- 
burn, J., asks (3 B. & S. 269) : — " Is there any case where an 
action has been maintained for slander, written or verbal of 
goods, unless where the slander is of the title to them, and 
special damage has resulted ? " But the dicta of the other judges 
fully bear out the head-note : — " Semhle, that if a person falsely 
and maliciously disparages an article which auotlier manu- 
factures or vends, and special damage results therefrom, an 
action will lie, although in so doing no imputation was cast on 
the personal or professional character of the manufacturer or 
vendor." And this semhle may now, I think, be considered as 
settled law, since the decision in Western Counties Manure 
Co. v. Latues Chemical Manure Co., supra. 

It is unfortunate that in the report of Young v. Macrae, in 
the Law Journal (32 Q. B. p. 8), Cockburn, C. J., is represented 
as stating : — " I am very far from saying that if a trader 
maliciously, and falsely to his own knowledge, publishes matter 
disparaging an article manufactured or sold by another, even if 
he makes no reflection upon the character, trade, or profession 
of that other, and if special damage followed, that there would 
not be an actionable libel ; for a most grievous wrong might be 
done in that way, and the person injured ought to have a 
remedy by an action." The words "falsely to his own know- 
ledge " seem to imply that fraud or misrepresentation is essential 
to the cause of action ; and it is on the authority of this passage, 
no doubt, that I find it stated in Addison on Torts (3rd ed., 
p. 787 ; 4th ed., p. 796 ; 5th ed,, p. 184) : " Disparaging criti- 
cisms by one tradesman upon the goods of a rival tradesman I 
are not actionable, unless it is proved that they have been f 
maliciously and fraudv.lently onade, and were false to the i 
knowledge of the party at the time they ivere made.'" But in 
no other place in the Law Journal Report is there any hint that 
a scienter must be proved, although the Lord Chief Justice 



I 



irORDS COA'CERNING THINGS. 147 

gives several instances during the argument and later in his 
judgment, in which in his opinion an action would lie. That 
the statement was false to the knowledge of the defendant is 
cogent evidence of malice ; but surely any other evidence of 
malice would be sufficient. In Best & Smith, the passage 
cited above is given as follows : — " I am far from saying that if 
a man falsely and maliciously makes a statement disparaging 
an article which another manufactures or vends, although in so 
doing he casts no imputation on his personal or professional 
character, and thereby causes an injury, and special damage is 
averred, an action might not be maintained. For although 
none of us are familiar with such actions, still we can see that a 
most grievous wrong might be done in that way, and it ought 
not to be without remedy ; " (3 B. & S. 269). And so in the Law 
Times Reports (7 L. T. 800), the words are merely "falsely and 
maliciously;" in the Jurist (9 Jur. N. S. 539) merely "a dis- 
paraging notice ; " though the Weekly Reporter (11 W. R. 63) 
contains in addition to " falsely and maliciously," the words 
" by statements he knows to be false." In Western Counties 
Manure Go. v. Leaves Manure Co., the declaration before the 
Court did not contain any averment " as the defendants well 
knew." See the whole pleadings in the Appendix. I conclude, 
therefore, in spite of the passage cited above from Addison on 
Torts, that the defendant's knowledge of the falsity of his 
statements at the time he makes them, is immaterial in this 
action, save as aggravating the damages. 

In Thomas v. Williams, 14 Ch. D. SG4 ; 49 L. J. Ch. 605 ; 
28 W. R. 983; 43 L. T. 9], Fry, J., decided that to entitle a 
plaintiff to an injunction to restrain a libel injurious to trade 
it was not necessary that ho should prove actual damage. 

IllustixUions. 

The (.lefendaiit imljHshed an adveilisement, denying that the plaintifY held 
any patent for the manufacture of " self-acting tallow .syphons or lubri- 
cators," and cautioning the public against such lubricators as wasting the 
taUoAv. No special damage was alleged. Held that the words were not a 
libel on the plaintiff either generally, or in the way of his trade, but were 
only a reflection upon the goods sold by him, which was not actionable 
without special damage. 

Evam V. Harlow, 5 (^ B. 624 ; 13 L. J. Q. B. 120 ; Dav. & M. 
507 ; 8 Jur. 571 ; ante, p. 33. 

T. 2 



148 SLANDER OF TITLE. 

" If a man makes a false statement with resjject to the goods of A., iii 
comparing his own goods with those of A., and A. suffers special damage, 
will not an action lie ? " Per Cockburn, C. J., in 

Young and others v. Macrae, 32 L. J. Q. B. 8 ; 
and counsel answers, " Certainly it would." 

" If a man were to write falsely that what another man sold as Turkish 
rhubarb was three parts brickdust, and special damage could l)e proved, it 
might be actionable." Per Cockbiun, C. J., in 

Young and others v. Macrae, 32 L. J. Q. B. 7. 
The defendant published a certificate by a Dr. Muspratt, who had com- 
pared the plaintiff's oil with the defendant's, and deemed it inferior to the 
defendant's. It was alleged that the certificate was false, and that divers cus- 
tomers of tlie plaintirt"s after reading it had ceased to deal with the plaintiff 
and gone over to the defendant. Held that the plaintiff' 's oil, even if 
inferior to the defendant's, might still be very good ; and that the falsity 
was alleged too generally, and that therefore no action lay. It was con- 
sistent with the declaration that every word said about the plaintiff's oil 
should be true, and the only falsehood the assertion that defendant's was 
superior to it, which would not be actionable. " It is not averred that the 
defendant falsely represented that the oil of the j^laintiffs had a reddish - 
brown tinge, was much thicker, and that it had a more disagreeable odour. 
If that had been falsely represented, and special damage had ensued, an 
action might have been maintained." 

Young and others v. Macrae, 3 B. & S. 264 ; 32 L. J. Q. B. 6 ; 

11 W. R. 63 ; 9 Jur. N. S. 539; 7 L. T. 354. 

The defendants falsely and without lawful occasion published a detailed 

analysis of the plaintiffs' artificial manure and of their own, in which the 

plaintiffs' manure was much disparaged and their own e.xtolled. Special 

damage having resulted, Iield that the action lay. 

Western Counties Manure Co. v. Laives Chemical Manure Co., L. R. 

9 Ex. 218 ; 43 L. J. Ex. 171 ; 23 W. R. 5. 
See Thorley's Cattle Food Co. v. Massam, 6 Ch. D. 582 ; 46 L. J. 
Ch. 713 ; 14 Ch. D. 763 ; 28 W. R. 295, 966 ; 41 L. T. 542 ; 
42 L. T. 851. 
The defendant stated in Ireland that the plaintiff's ship was imsea worthy, 
consequently her crew refused to proceed to sea in her, and a negociation 
for the sale of her fell through. The ship was in England. But it was held 
that this fact would not give an English Court jurisdiction. 

Caseij V. Arnott, 2 C. P. D. 24 ; 46 L. J. C. P. 3 ; 25 W. R. 
46 ; 35 L. T. 424. 

There are many other cases in which words produce 
special damage to the plaintiff without in any way 
affecting his reputation ; and for such words if spoken 
without lawful occasion an action on the case will lie, 
provided the damage be the necessary or probable con- 



WORDS PRODUCING DAMAGE. 149 

sequence of the words, within the meaning of the strict 
rules laid down in c. X., pp. 321 — 333. But as such 
cases are clearly beyond the scope of the present treatise, 
I merely subjoin a few instances. 

IllustTations. 

If a man menace my tenants at will, of life and niemlier, per quod they 
depart from their tenures, an action upon the case will lie against him, Lut 
the menace without their departure is no cause of action. 

Conesby's Case, Year Book, 9 Hen. VII., pp. 7, 8 ; 1 IioII. ALr. 
108. 
If defendant threatens the plaintiff's workmen, so that they do not dare 
to go on with their work, whereby the plaintiff loses the selling of his goods, 
an action lies. 

Garret v. Taylor (1621), Cro. Jac. 567 ; 1 EoU. Abr. 108. 

Tarleton and others v. McGawley, Peake, 270. 

And see Sjmnghead Spinning Co. v. Riley, L. E. 6 Eq. 551 ; 37 

L. J. Ch. 889 ; 16 W. R. 1138 ; 19 L. T. 64. 
Skinner y. Kitch, L. R. 2 Q. B. 393 ; 36 L. J. M. C. 322; 15 
W. R. 830 ; 16 L. T. 413. 
" If a man should lie in wait and fright the boys from going to school, 
that schoolmaster might have an action for the loss of his scholars." Per 
Holt, C. J., in 

Keble v. HickerimjiU, 11 East, 576, n. 
The defendant wrongfully and maliciously caused certain persons who 
had agreed to sell goods to the plaintiff to refuse to deliver them, by assert- 
ing that he had a lien upon them, and ordering those persons to retain the 
goods until further orders from him, he well knowing at the time that he 
had no lien. Held that the action was maintainable, though the persons 
who had the goods were under no legal obligation to obey the orders of the 
defendant, and their refusal was their own spontaneous act. 
Green v. Button, 2 C. ]\I. & R. 707. 



CHAPTER VI. 

PUBLICATION. 

Publication is the communication of the defamatory 
words to some third person. It is essential to the plain- 
tiff's case that the defendant's words should be expressed; 
the law permits us to think as badly as we please of oiu- 
neighbours so long as we keep our uncharitable thoughts 
to ourselves. Merely composing a libel is not action- 
able unless it be published. And it is no publication 
when the words are only communicated to the person 
defamed; for that cannot injure his reputation. A 
man's reputation is the estimate in which others hold 
him; not the opinion Avhich he has of himself. The 
attempt to diminish our friend's good opinion of himself, 
though possibly unpleasant to him, is yet generally 
ineffectual, and is certainly not actionable, unless some- 
one else overhears. There must be a communication by 
the defendant to some third person, other than the plain- 
tiff. {Barroio v. Lewellin, Hob. 62.) And the com- 
munication, whether it be in words, or by signs, gestiu-es, 
or caricature, must be intelligihU to such third jDcrson. 
If the words used be in the vernacular of the place of 
publication, it will be presumed that such third jjersons 
understood them, until the contrary be proved. And it 
Avill be presumed that they understood them in the 
sense which such words properly bear in then- ordinary 
signification, unless any reason appear for assigning 



PUBLICATION. 151 

them a difterent meaning. Making it kno^m to one 
individual is a sufficient ^'publishing," provided that 
that one is not the person defamed. Such publication 
must of course be prior to the date of the issuing of the 
writ. 

Illustvationfi. 

To shout defamatory words 011 a desert moor where no one can hear you 
is not a publication ; but if anyone chances to hear you, it is a publication, 
although you thought no one was by. 

To utter defamatory words in a foreign language is not a publication, if 
no one present understands their meaning ; but if defamatory words be 
written in a foreign language, there will be a publication as soon as 
ever the writing conies into the hands of anyone who does understand that 
language, or who gets them explained or translated to him. 

Sending a letter through the post to the plaintiff, properly addressed to 
him, and fastened in the usual way, is no publication ; and the defendant is 
not answerable for anything the plaintiff may choose to do with the letter 
after it has once safely reached his hands. 
Barroiv v. Lewellin, Hob. G2. 
In an American case the i^laintiff, after so receiving a libellous letter 
from the defendant, sent for a friend of his and also for the defendant ; he 
then repeated the contents of the letter in their presence, and asked the 
defendant if he wrote that letter ; the defendant, in the presence of the 
plaintiff's friend, admitted that he had written it, Held, no publication hij 
the defendant to the plaintiff's friend. 

Fonville v. Nease, Dudley, S. C. 303. 
But it is otherwise if a message be sent to the plaintiff by telegraph ; the 
contents of the telegram are necessarily communicated to all the clerks 
through whose hands it passes. So with a postcard. 

Whitfield and others v. S. E. By. Co., E. B. & E. 115 ; 27 L. J. 

Q. B. 229 ; 4 Jur. N. S. 688. 
Williamson v. Freer, L. E. 9 C.P. 393 ; 43 L. J. C. P. 161 ; 22 

W. E. 878 ; 30 L. T. 332. 
Mohinson v. Jones, 4 L, E. Ir. 391. 
So where the defendant knew that the plaintiff's letters were always 
opened by his clerk in the morning, and yet sent a libellous letter addressed 
to the plaintiff, which was opened and read by the plaintifi's clerk lawfully 
and in the usual course of business. Held, a publication by the defendant 
to the plaintiff's clerk. 

Delacroix v. Thevenot, 2 Stark. 63. 
So where the defendant, before posting the letter to the plaintiff, had 
it copied. Held, a pulJication by the defendant to his own clerk who 
copied it. 

Keene v. Buff, 1 Clarke (Iowa), 482. 



152 PUBLICATION 

So where the defendant wrote a letter to the phxintiff himself, but read it 
to a friend before posting it. 

Smjder v. Andrews, 6 Barbour (New York), 43. 
AlcComhs V. Tuttle, 5 Blackford (Indiana), 431. 
The delivery of a newspaper containing the libel to the proper officer of 
the Commissioners of Stamps and Taxes for revenue purposes is a sufficient 
publication of the libel ; although the proprietor of the paper was required 
by law so to deliver it ; for the stamp officer " would at all events have an 
opportunity of reading " the libel. 

E. V. AmiMit, 4 B. & C. 35 ; 6 D. & K. 125. 
So the delivery of a manuscript to be printed is a sufficient publication ; 
even though the author repent and suppress all the printed copies. For 
the compositor must hear it read. 

Baldwin v. Elphinston, 2 W. Bl. 1037. 
[This may be considered a somewhat harsli decision, as the compositor does 
not attend to the substance of the manuscript, but sets it up in copy 
mechanically ; but it has recently been acted on in America. 
Trumhdl v. Gfibbo7is, 3 City Hall Kecorder, 97. 
And see IVatts v. Fraser and another, 7 Ad. & E. 223 ; 7 C. & P. 
369 ; 1 M. & Rob. 449 ; 2 N. & P. 157 ; 1 Jur. 671 ; W. W. 
& D. 451. 
Lawless v. The Anglo- Egyptian Cotton and Oil Co., L. R. 4 Q. B. 

262 ; 10 B. & S. 226 ; 38 L. J. Q. B. 129; 17 W. R. 498. 
Lake v. King, 1 Lev. 241 ; 1 Saund. 131 ; Sid. 414 ; 1 Mod. 58.] 
But merely to be in possession of a copy of a libel is no crime, unless 
some publication thereof ensue. 

E. V. Beere, Carth. 409 ; 12 Mod. 219 ; Holt, 422 ; Salk. 417 ; 1 

Rav. 414. 
And see 11 Hargrave's St. Tr. 322, sub Entich v. Carrington. 



Although husband and wife are generally to be considered 
one person in actions of tort as well as of contract {Pltilllps v. 
Barnet, 1 Q. B. D. 436), still the plaintiff's wife is sufficiently a 
third person to make a communication to her of words defama- 
tory of her husband, a publication in law. ^yenlnal^ v. Ash, 
13 C. B. S36 ; 22 L. J. C. P. 190 ; 1 C. L. R. 592 ; 17 Jurist, 
579. And it is submitted that similarly a communication to 
the husband of a charge against his wife is a sufficient publica- 
tion. The doubt suggested by Jervis, C. J., in Wenrtian v. Ash, 
must mean that he considered a communication to the husband 
of a report prejudicial to his wife was iJriTnd facie privileged 
as being a friendly act ; not that it was no publication. The 
converse case of the defendant and his wife has never been 
decided in England. Is it a publication if a man tells his wife 



PUBLICATION. 153 

what he thinks of his neighbours ? Possibly such a communi- 
cation would be deemed to enjoy the same privilege as that 
which is supposed to attacli to matters divulged by a Roman 
Catholic to his priest under the seal of confession. The question 
seems never to have arisen in England ; probably because in 
every such case there has been an immediate and undoubted 
publication of the same slander, or an exaggerated version 
thereof, by the wife to some third person ; for which the husband 
would be equally answerable in damages, and which would be 
easier to prove. In America there is a dictum, that the delivery 
of a libel by the author to his wife " in confidence " is privileged. 
{Trumbull v. Gibbons, 3 City Hall Recorder, 97.) 

The plaintiff must prove a publication by the de- 
fendant m fact That the thiixl person had the oppor- 
tunity of reading the libel is not sufficient, if the jury 
are satisfied that he did not in fact avail himself thereof. 
Even though it is clear that the defendant desired and 
intended publication. 

Illustrations. 

The delendant wrote a letter and gave it to B. to deliver to the plaintiff. 
It was folded, but not sealed. B. did not read it ; but conveyed it direct 
to the plaintiff. Held, no pubhcation. 

ChttterhucJc v. Chaffers, 1 Stark. 471. 
Day V. Bream, 2 Moo. & Rob. 54. 
The defendant threw a sealed letter addressed to the plaintiff, " or C," 
into M.'s enclosure. M. picked it up and delivered it unopened to the 
plaintiff himself, who alone was libelled. No publication. 
Fonville v. Nease, Dudley, S. C. 303 (American). 
Posting up a libellous placard and taking it down again before anyone 
could read it, is no publication ; but if it was exhibited long enough for 
anyone to read it, then it is a question of fact for the jury whether anyone 
actually did read it. 

So it is no defence that the third person was not 
intended to overhear the slander or to read the libel, if 
in fact he has done so. An accidental or inadvertent 
communication is quite sufficient. (See Shcpheard v. 
Tf/»Ya/ccr,L.E. lOC.P. 502; 32L.T. 402; Q.l.ante.^.l.) 



154 PUBLICATION 

Illustrations. 

The defendant by mistake directed and posted a liLellous letter to the 
plaintiff's employer instead of to the plaintiff himself. Held a publication. 

Fox V. Broderick, 14 Ir. C. L. Rep. 453. 
Rev. Samuel Paine sent his servant to his study for a certain paper 
which he -wished to show to Brereton ; the servant by mistake brought a 
libellous epitaph on Queen Mary, which Paine inadvertently handed to 
Brereton, suj^posiug it to be the paper for which he sent ; and Brereton 
read it aloud to Dr. Hoyle. This would probably be deemed a publication 
by Paine to Brereton in a civil case — (Note to Mayne v. Fletcher, 4 Man. 
& Ry. 312) ; but would not be sufficient in a criminal case. 

E. V. Paine (1695), 5 Mod. 163. 
For in a criminal case it is essential that there should be a guilty intention. 

E. V. Lord Abingdon, 1 Esp. 228. 

See also Brett v. JVatson, 20 W. R. 723. 

BMe V. Stevens, 4 F. & F. 232 ; 11 L. T. 543. 
But if I compose or copy a libel, and keep the manuscript in my sti;dy, 
intending to show it to no one, and it is stolen by a burglar and published 
by him ; it is submitted that there is no publication by me, either in civil 
or criminal proceedings. 

See JFeir v. Hoss, 6 Alabama, 881. 
But it would be a publication by me, if through any default of mine it got 
abroad, whether through my negligence or folly. 

As soon as the manuscript of a libel lias passed out of 
the defendant's possession and control, it is deemed to be 
published, so far as the defendant is concerned [Pe?- 
Holroyd, J., in 7?. \. Biirdetf, 4 B. & Aid. 143) ; provided 
it does not pass immediately and unread into the pos- 
session and control of the plaintiff. 

Illustrations. 

A letter is published as soon as posted, and in the place where it is 
posted, if it is ever opened anywhere by any third person. 

TVard v. Smith, 6 Bing. 749 ; 4 M. & P. 595 ; 4 C. & P. 302. 

Clcgcj V. Laffer, 3 Moore & Scott, 727 ; 10 Bing. 250. 

TVarren v. )Varren, 4 Tyr. 850 ; 1 C. M. & R. 250. 

Shijiley v. Todhunter, 7 C. & P. 680. 
So " it I send a manuscript to the printer of a periodical publication, and 
do not restrain the printing and publishing of it, and he does print and 
publish it in that pul)lication, I am the publislier," and as such liable to an 
action. Per Lord Erskine in 

Burdett v. Abbot, 5 Dow, H. L. 201 ; 14 East, 1. 

See also E. v. Lorctf, 9 C. & P. 462. 



PER ALIUM. 155 

Every one who requests, procures, or commands 
another to publish a libel is answerable as though he 
published it himself. And such request need not be 
express, but may be inferred from the defendant's 
conduct in sending his manuscript to the editor of a 
magazine, or making a statement to the reporter of a 
newspaper, with the Imowledge that they will be sure 
to publish it, and without any effort to restrain their so 
doing. And it is not necessary that the defendant's 
communication be inserted verbatim; so long as the 
sense and substance of it appear in print. 

This rule is of great vahie in cases where the words employed 
are not actionable when spoken ; but are so if written. Here 
though the proprietor of the newspaper is of course liable for 
printing them, still it is more satisfactory if possible to make 
the author of the scandal defendant. An action of .slander Avill 
not lie ; but if he spoke the words under such circumstances as 
would ensure their being printed, or if in any other way he 
requested or contrived their publication in the paper, he is liable 
in an action of libel as the actual publisher. Qui facit per 
alium facit per se. 

Illustrations. 

If a manuscript in the hanchvriting of the defendant be sent to the 
printer or puhlislier of a magazine, who prints and publishes it, the defen- 
dant will be liable for the full damages caused by such publication, although 
there is no proof offered that he expressly directed the printing and pub- 
lishing of such manuscrij)t. 

Bond V. Douglas, 7 C. & P. 626. 
E. V. Lovett, 9 C. & P. 462. 
Burden v. Ahhot, 5 Dow, H. L. 201 ; 14 East, 1. 
And this is so, although the editor has cut the article up, omitting the 
most libellous passages and only publishing the remainder. 

Tarpley v. Blahey, 2 Bing. N. C. 437 ; 2 Scott, 642 ; 1 Hodges, 414. 
So where Cooper told the editor several good stories against the Rev. 
J. K. and asked the editor to "show Mr. K. up ;" and subsequently the 
editor published the substance of them in the newspaper ; this was held a 
publication by Cooper, although the editor knew of the facts from other 
quarters as Avell. 

R. V. Cooper, 15 L. J. Q. B. 206 ; 8 Q. B. 533. 
And see Adums v. Kelly, Ry. & Moo. 157 ; and the judgments of 
Byles and Mellor, .J..T., in the ne.xt case, L. R. 4 Ex. 181—186. 



^56 PUBLICATION 

At the meeting of the hoard of guardians, at which reporters were present, 
it was stated that tlie plaintiff had turned his daughter out of doors, and that 
she consequently had been admitted into the workhouse and had become 
chargeable to the parish. Ellis, one of the guardians, said, " I hope the 
local press will take notice of this very scandalous case," and requested the 
chairman, Prescott, to give an outline of it. This Prescott did, remarking, 
" I am glad gentlemen of the press are in the room, and I hope they will 
give publicity to the matter." EUis added, " And so do I." From the 
notes taken in the room the reporters prepared a condensed account which 
appeared in the local newspapers, and which, though partly in the re- 
porters' own language, was siibstantially a correct rej)ort of what took place 
at the meeting. Held by the majority of the Court of Exchequer Chamber 
(Montague Smith, Keating and Hannen, J.J., Byles and Mellor, J.J., 
dissenting) that Martin, B., was wrong in directing the jury that there was 
no evidence to go to the jury that Prescott and Ellis had directed the pub- 
lication of the account which appeared in the papers. [X.B. — Of the six 
judges concerned, three were of one opinion, three of the other.] 

Parkes v. Prescott and another, L. R. 4 Ex. 169 ; 38 L. J. Ex. 
105 ; 17 W. E. 773 ; 20 L. T. 537. 

But though merely composing a libel without pub- 
lishing it is not actionable, merely publishing it, not 
having composed it, is actionable. " The mere delivery of 
a libel to a third person by one conscious of its contents 
amounts to a publication and is an indictable offence." 
{Per Wood, B., in 3Iahner/ \, Bartleij, 3 Camp. 213.) 
"If one reads a libel, that is no publication of it; or 
if he hears it read, it is no publication of it ; for before 
he reads or hears it, he cannot know it to be a libel ; or 
if he hears or reads it, and laughs at it, it is no publica- 
tion of it ; or if he writes a copy of it, and does not 
publish it to others, it is no publication of the libel ; but 
if after lie has read or heard it, he repeats it, or any part 
of it, in the hearing of others, or after that he knows it 
to be a libel, he reads it to others, that is an imlawful 
publication of it." [Per Lord Coke in John LamVs Case, 
9 Eep. GO.) 

Every one who prints or publishes a libel may be 
sued by the person defamed ; and to such an action it 
is no defence that another wrote it ; it is no defence that 
it was printed or published b}^ the desire or procurement 



IN A XEWS PAPER. 157 

of another, whether that other be made a defendant to 
the action or not. All concerned in publishing the libel 
or in procuring it to be published are equally responsible 
with the author. And printing the libel or causing it to 
be printed is prima facie evidence of publication. {Bur- 
dett Y. Abhot^ 5 Dow, H. L. 201 ; Baldwin v. Elphlnston^ 
2 W. Bl. 1037.) If the libel appear in a newspaper, the 
proprietor, the editor, the printer, and the author, are all 
liable to be sued, either separately or together. And 
that one has been already sued is no defence to an action 
brought against any of the others in respect of the same 
libel. {Frescoe v. Majj, 2 F. & F. 123.) Nor should 
the fact that such actions are pending be taken into con- 
sideration by the jury in assessing the damage arising 
from the publication by the present defendant. [Harri- 
son Y. Pearce, 1 F. & F. 567 ; 32 L. T. (Old S.) 298.) 
In all cases of joint publication each defendant is liable 
for all the ensuing damage. And there is no contribu- 
tion between tort-feasors. So that the j)i'oprietor of a 
paper sued jointly with his careless editor or with the 
actual composer of iha libel cannot compel either of his 
co-defendants to recoup him the damages, which he has 
been compelled to pay the plaintiff. ( Colhurn y. Patmore, 
1 C. M. &E. 73; 4 Tyr. 677.) 

But if there be two distinct and separate publications 
of the same libel, a defendant who was concerned in the 
first publication, but wholly unconnected with the 
second, Avould not be liable for any damages which he 
could prove to have been the consequence of the second 
publication and in no way due to the first. 

And here I will cite the remarks of Best, C. J., in De Gres- 
pigny v. Wellesley, 5 Bing. pp. 402 — 406). " If a man receives 
a letter with authority from the author to publish it, the person 
receiving it will not be justified, if it contains Hbellous matter, 
in inserting it in the newspapers. No authority from a third 



158 PUBLICATION 

person will defend a man against an action brought by a person 
who has suffered from an unlawful act. If the receiver of a 
letter publish it without authority, he is, from his own motion, 

the wilful circulator of slander If the person receiving a 

libel may publish it at all, he may publish it in whatever 
manner he pleases ; he may insert it in all the journals, and 
thus circulate the calumny through every region of the globe. 
The effect of this is very different from that of the repetition of 
oral slander. In the latter case, what has been said is known 
only to a few persons, and if the statement be untrue, the im- 
putation cast upon any one may be got rid of ; the report is not 
heard of beyond the circle in which all the parties are known, 
and the veracity of the accuser, and the previous character of 
the accused, will be properly estimated. But if the report is to 
be spread over the world by means of the press, the malignant 
falsehoods of the vilest of mankind, v/hich would not receive the 
least credit where the author is known, woidd make an im- 
pression which it would require much time and trouble to erase, 
and which it might be difficult, if not impossible, ever com- 
pletely to remove Before he gave it general notoriety by 

circulating it in print, he should have been prepared to prove 
its trutli to the letter ; for he had no more right to take awa}-- 
the character of the plaintiff, without being able to prove the 
truth of the charge that he liad made against him, than to take 
his property without being able to justify the act by which he 
possessed himself of it. Indeed, if we reflect on the degree of 
suffering occasioned by loss of character, and compare it with 
that occasioned by loss of property, the amount of the former 
injury far exceeds that of the latter." 

lllustTat'ions. 

A man may thus be guilty botli of libel ami of slander at the same 
moment and by the same act ; as, by reading to a public meeting a defama- 
tory paper written by another. 

Eeanu v. ^towdl, 12 A. & E. 719 ; 6 Jur. 458 ; 4 P. & D. 696. 
Hudson brought the manuscript of a libellous song to Morgan to liave 
1000 copies printed ; Morgan printed 1000 and sent 300 to Hudson's shop. 
Hudson gave several copies to a witness who sung it about the streets. It 
did not appear in whose writing tlie manuscript was ; but probably not in 
Hudson's. Hdd that both Hudson and Morgan had published the libel. 

Johnson v. Hudson and Morgan, 7 A. & E. 23,3 ; 1 H. & W. 
680. 



LY A NEWSPAPER. 159 

By the 38 Geo, III., c. 71, s. 17 (now repealed), the proprietor of every 
newspaper was required to send a copy of every issue to the Stamp Otiice 
for Revenue purposes ; ]ieM that the delivery of a copy to the officer at the 
Stamp Office was a sufficient publication of a libel contained in it to 
render the pro})rietor liable to an action, " as the officer of the Stamp 
Office would at all events have an opportunity of reading the libel himself." 
R. V. AriqMit, 4 B. & C. 35 ; 6 D. & R. 125. 
Mayne v. Fletcher, 9 B. & C. 382 ; 4 Man. & Ry. 312. 
The proprietor of a newspajier is always liable for whatever appears in 
its columns ; although the pulilication may have been made ■without his 
knowledge and in his absence. 

E. V. JFalter, 3 Esp. 21. 
But now in criminal cases, see 6 & 7 Vict. c. 96, s. 7. 

E, V. Holhrook and others, 3 Q. B. D. 60 ; 4 Q. B. D. 42 ; 47 
L. J. Q. B. 35 ; 48 L. J. Q. B. 113 ; 26 W. R. 144 ; 27 W. R. 
313 ; 37 L. T. 530 ; 39 L. T. 536. 
So is the master printer. 

E. V. Dover, 6 How. St. Tr. 547. 
So, in England, the acting editor is always held liable. 

Watts V. Fraser and another, 7 C. & P. 369 ; 7 Ad. & E. 223 ; 

1 M. & Rob. -149 ; 2 N. & P. 157 ; 1 Jur. 671 ; W. W. & D. 451. 

In America, however, though the proprietor and printer of a paper are 

always held liable, the editor is, it would seem, allowed to plead as a 

defence that the libel was inserted without his orders and against his will. 

The Comrnonivealth v. Kneeland, Thaclier's C. C. 346. 

Or without any knowledge on his part that the article was a libel on any 

particular individual. 

Smith V. Ashley (1846), 52 Mass. (11 Met.) 367. 
The proprietor of a newspaper is liable even for an advertisement in- 
serted and paid for by Bingham ; although the plaintiff is bringing 
another action against Bingham at the same time. 

Harrison v. Pearce, 1 F. & F. 567 ; 32 L. T. (Old S.) 298. 
" If you look upon the editor as a person who has published a libellous 
advertisement incautiouslj'-, of course he is liable." Per Pollock, C.B., in 
Keyzor and another v. Newcomh, 1 F. & F. 559. 
If a country newspaper copy and publish a libellous article from a 
London newspaper, the' country paper makes the article its own, and 
is liable for all damages resulting from its publication in the countr}\ The 
fact that it had previously appeared in the London paper is no defence, 
though it may tend to mitigate the damages. 

Saunders v. Mills, 3 M. & P. 520 ; 6 Bing. 213. 
Talhutt V. Clarl; 2 M. & Rob. 312. 
Evidence that the plaintiff had in a previous action recovered damages 
against the London paper for the same article is altogether inadmissible ; as 
in that action damages were given only lor the jiublication of the libel in 
London. 

Oreevy v. Carr, 7 C & P. 64. - 

And sec rrant v. Alynr and olhns, 6 C. & P. 245. 



i6o PUB Lie A TION. 

If I compose a libel and leave it in my desk among my papers, and my 
clerk snrreptitionsly takes a copy and sends it to the newspapers, it is sub- 
mitted that he alone is liable for the damage caused thereby. I am liable 
only to such damages as the jury may award for the negligent though unin- 
tentional publication to my clerk. For although he could not have taken 
a copy, had I not first written the libel, still the subsequent republication 
of it is my clerk's own independent act, for the consecpiences of Avhich he 
alone is liable. ^SVcks, if I in any way encouraged or contrived his taking 
a copy, knowing that he would be sure to publish it in the newspapers. 

So again every sale or deliyery of a written or printed 
copy of a libel is a fresli publication ; and every jDerson 
who sells or gives away a wiitten or printed copy of a 
libel may be made a defendant, unless, indeed, he can 
satisfy the jury that he was ignorant of the contents. 
The onus of proving this lies on the defendant, and 
where he has made a large profit by selling a great 
many copies of a libel, it will be very difficult to per- 
suade the jury that he was not aware of its libellous 
natui'e. [Chuhh v. Flannagan, G C. & P. 431.) In 
every other respect it makes no difference in law 
whether the delivery of the copy was b}" public sale or 
merely by confidentially showing the libel to a friend. 
Each is equally a publication. But the jury will, in 
estimating the damages, attach great importance to the 
mode of publication : as an indiscriminate public sale of 
the libel must inflict much more serious injuiy on the 
plaintiff's reputation. The defendant could not after- 
wards recall or contradict his statements, did he desire to 
do so. (See^;^/- Lord Denman, C. J., 9 A. & E. 149.) 

lUiistrations. 

The plaintiff's agent, with a view to the action, called at the office of the 

defendant's newspaper, and made them find for him a copy of the paper . 

that had appeared seventeen years previously, and bought it. Held that . I 

this was a liesh publication by the defendant, and that the action lay in f 
spite of the Statute of Limitations. 

Duke of Brunsxvick v. Harmer, 14 Q. B. 185 ; 19 L. J. Q. B. 20 ; f 

14 Jur. 110; 3 C. & K. 10. ' 



REPETITION. i6i 

A porter who, in the course of business, delivers parcels containing 
libellous hand-bills, is not liable in an action for libel, if shown to be 
ignorant of the contents of the parcel. 

Bay V. Bream, 2 M. & Rob. 54, 
for he is but doing his duty in the ordinary way. 

A servant carries a libellous letter for his master, addressed to C It is 
his duty not to read it. If he does read it, that is a publication by his 
master to him, although he was never intended to read it. If after reading 
it he delivers it to C. then this is a publication by the servant to C, for 
which the person libelled, not being C, can sue either the master, or the 
servant, or both. If the servant never reads it, but simply delivers it as he 
was bidden, then he is not liable to any action, unless he either knew «r 
ought to have known that he was being employed illegally. If he either 
knew or ought to have known, then it is no defence for him to plead " I 
was only obeying orders." 

The defendant kept a pamphlet shop ; she was sick and upstairs in bed ; 
a libel was brought into the shop without her knowledge, and subsequently 
sold by her servant on her account. She was held criminally liable for the 
act of her servant, on tlie ground that " the law presumes that the master 
is acquainted witli wluit his servant does in the course of liis business.'' 

R. V. Bodd, 2 Sess. Cas. 33. 

Nidth Case, Fitzg. 47 ; 1 Barnard, 306. 
But later judges would not be so strict ; the sickness iipstairs, if properly 
proved by the defendant, would now be held an excuse. 

R. V. Almo7i, 5 Burr. 2686. 

R. V. Gutch, Fisher, and Alexander, Moo. & Mai. 433. 

And in criminal cases, see 6 & 7 Vict. c. 96, s. 7. 
A rule was granted calling on Wiatt to show cause why he should not 
be attached for selling a book containing a libel on the Court of King's 
Bench. The book was in Latin. On filing an aflidavit that he did not 
understand Latin, and on giving up the name of the printer from whom he 
obtained it, and the name of the author, the rule was discharged. 

R. v. Wiatt (1722), 8 Mod. 123. 

Every repetition of a slander is a wilful publication of 
it, rendering the speaker liable to an action. " Tale- 
bearers are as bad as tale-makers." * It is no defence 
that the sj^eaker did not originate tlie scandal, but heard 



* Mrs. Can. " But surely you would not be quite so severe on those who 
only re])eat what they hear ] " 

Sir Pet. " Yes, Madam, I would have law merchant for them too ; and 
in all cases of slander currency whenever the drawer of the lie was not to 
be found, the injured parties should have a right to come on any of the 
indorsers." — Tlie School for Scandal. 

M 



1 62 PUBLICATION. 

it fi'om another, even tliongli it was a current rumour and 
lie hond fide believed it to be true. ( WatJcin v. Hall., L. E. 
3 Q. B. 396; 37 L. J. Q. B. 125; 16 W. E. 857; 18 
L. T. 561.) It is no defence that the speaker at the 
time named the person from whom he heard the scandal. 
{M'Phcrson v. Daniels, 10 B. & C. 270; 5 M. & E. 
251.) 

^This proposition, it is submitted, correctly states the existing 
law on the point ; but it would certainly not have been accepted 
as clear law in the last century. Great difficulty was presented 
by the fourth resolution in Lord XortlwAiipton' s Case (in the 
Star Chamber, 1613), 12 Kep. 134, which runs as follows : — "In 
a private action for slander of a common person, if J. S. publish 
that he hath heard J. N. say, that J. G. was a traitor or thief ; 
in an action of the case, if the truth be such, he may justify. 
But if J. S. publish that he hath heard generally Avithout a 
certain author, that J. G. was a traitor or thief, there an action 
siiT le case lieth against J. S. for this, that he hath not given to 
the party grieved any cause of action against any, but against 
himself who published the words, although that in truth he 
might hear them ; for otherwise this might tend to a great 
slander of an innocent ; for if one who hath Icesam j^hantasiam, 
or who is a drunkard, or of no estimation, speak scandalous 
words, if it should be lawful for a man of credit to report them 
generally that he had heard scandalous words, without mention- 
ing of his author, that would give greater colour and probability 
that the words were true in respect of the credit of the reporter, 
than if the author himself should be mentioned.^' 

Now in the first place, the reason here assigned for the dis- 
tinction obviously applies only to cases in which the originator 
of the scandal is of less credit than the retailer of it, and is 
known to be so by those to whom it is retailed. If those who 
hear the tale repeated know nothing of the person cited as the 
authority for it, it is to them precisely as if the name were 
omitted altogether, and it had been told as an on dit. If, on 
the other hand, the person named as the author of the assertion ( 
is of greater credit and respectability than the reporter, vouch- 
ing his authority clearly does the plaintiff's reputation a greater 



REPETITIOh. 163 

injury than if no name liacl been given at all. And even in the 
case where the author of the story is well known to be a person 
of no credit, how does that excuse the defendant's act in repeat- 
ing it ? It appears to me to make it all the worse ; he cannot 
even j)lead : — " I had it on good authority and reasonably 
believed it true." By the mere repetition of it the defen- 
dant endorses and gives credit to the tale, although he states 
that he heard it from A. B. Moreover, it is the defendant who 
sets the tale in circulation, and those who hear it from him will 
repeat it everywhere, and cite as their authority, not A. B., but 
the defendant whom we presume to be of greater respectability 
and credit. And generally, on principle, "because one man 
does an unlawful act to any person, another is not to be per- 
mitted to do a similar act to the same person. Wrong is not to 
be justified, or even excused, by wrong." Per Best, C. J., in 
Be Cres'pigny v. Wellesley, 5 Bing. 404. 

Moreover, the twelfth volume of Reports is a book of question- 
able authority ; it was issued after Lord Coke's death, compiled 
by someone else from papers which Lord Coke had neither 
digested nor intended for the press. See the remarks of Mr. 
Hargrave, 11 St. Tr. 301 ; of Holroyd, J., in Lewis v. Walte7\ 
4 B. & Aid. 614 ; and of Parke, J., in M'Pherson v. Daniels, 
10 B. & C. 275 ; 5 M. & R 251. 

The fourth resolution, as reported, appears inconsistent with 
the preceding resolution, the third ; and also with the many 
decisions in the case. And even if it be correctly reported, it is 
but an obiter dictum, for the Star Chamber had no jurisdiction 
over private slander, and the case before them was one of scan- 
dalum magjiatuvi, which branch of the law is governed by 
special statutes of its own. See ante, pp. 133 — 136. 

Still so great was the weight justly given to every word of 
ray Lord Coke, that this resolution was assumed to be law in 
Crawford v. Middhton, 1 Lev. 82 ; Davis v. Leiv'is, 7 T. R. 
17 ; and Woolnotli v. Meadows, 5 East, 463 ; 2 Smith, 28. The 
last two cases decided that at all events it is too late to name 
the author of the report for the first time in the plea of justifi- 
cation ; he must be named at time of publication to raise any 
ground of defence under this resolution. 

In Maitland v. Goldney (1802), 2 East, 426, Lord Ellen- 
borougii intimated that the doctrine did not apply where the 



1 64 PUBLICATION. 

reporter knew that liis informant, wliom he named, had re- 
traded the charge since making it, or where for any other 
reason the reporter at the time of repeating the tale knew it 
was false, and unfounded. Next, in Lewis v. Walter (1821), 
4 B. & Aid. 615, Holroyd and Best, J.J., expressed an opinion 
that the rule had been laid down too largely in the Earl of 
Northampton's Case, and ought to be qualified by confining it 
to cases where there is a fair and just reason for the repetition 
of the slander (that is, I presume, to cases where the repetition 
is privileged). Then, in February, 1829, the Court, of Common 
Pleas decided that in actions of libel there was no such rule. 
De Crespigny v. Wellesley, 5 Bing. 392, in which case Best, 

C. J., says : — " Of what use is it to send the name of the author 
with a libel that is to pass into a country where he is entii-ely 
unknown : the name of the author of a statement will not in- 
form those who do not know his character, whether he is a 
person entitled to credit for veracity or not ; whether his state- 
ment was made in earnest or by way of joke ; whether it con- 
tains a charge made by a man of sound mind or the delusion of 
a lunatic." And lastly, in M'FJterson v. Daniels, 10 B. & C. 
263; 5 M. & R. 251 (Michaelmas, 1829) the rule in Lord 
Northampton s Case was directly challenged and expressly 
overruled ; and it was held that for a defendant to prove that 
he said at the time that he heard the tale from A., and that A. 
did in fact tell it to the defendant, was no justification. It must 
be proved that the defendant repeated the story on a justifiable 
occasion, and in the honCi fide belief in its truth [and that is a 
defence of privilege, see Broraage v. Prosser, 4 B. & C. 247; 6 

D. & R 296 ; 1 C. & P. 475, 2)0st, c. VIII.]. This decision has 
been approved of and followed in Ward v. Weeks, 7 Bing. 211 ; 
4 M. & P. 796 ; and in WatJAn v. Ball, L. R. 3 Q. B. 396 ; 37 
L. J. Q. B. 125 ; 16 W. R. 857 ; 18 L. T. 561. 

And in America the law appears to be the same. Jarnigan 
V. Fleming, 43 Miss. 711 ; Treat v. Brotvning, 4 Connecticut, 
408 ; Runlde v. Meyers, 3 Yeates (Pennsylvania), 518 ; Dole v. 
Lyon, 10 Johns. (New York) 447; Inman v. Foster, 8 ^Vend. 
602. 

Illustrations. 

Woor toLl Daniels that M'Plierson's horses had been .seized from the 
coach, on the road, that he liad been arrested, and that the bailifls were in 



REPETITION. 165 

his house. Daniels went uljoiit telling everyone " Woor says that I\I'Pher- 
son's horses have been seized from the coach on the road, that he himseK 
has l)een arrested, and that the Lailifts are in his house." KeW, that 
Daniels was liahle to an action by M'Pherson for the slander, although he 
named Woor at the time as the person from whom he had heard it ; that it 
was no justitication to prove that "Woor did in fact say so : defendant must 
go further and prove that what Woor said Avas true. 

M'Pherson v. Danieh, 10 B. & C. 263 ; 5 M. & R. 251. 
The defendant said to the plaintiff in the presence of others : — " Thou 
art a sheep-stealing rogue, and Farmer Parker told me so." Held that an 
action lay. 

Gardiner v. Atwater, Say. 265. 

Lewes v. Walter (1617), 3 Bulstr. 225; Cro. Jac. 406, 413; 

Rolle's Rep. 444. 
Meiigs V. Griffith, Cro. Eliz. 400 ; Moore, 408. 
The defendant said to the plaintiff, a tailor, in the presence of others : — • 
" 1 heard you were run away," scilicet, from your creditors. Held that an 
action lay. 

Davis V. Leicis, 7 T. R. 17. 
Mr. and Mrs. Davies wrote a libellous letter to the Directors of the 
London Missionary Society, and sent a copy to the defendant, who pub- 
lished extracts from it in a pamphlet. The defendant stated that the 
letter was written by ]\Ir. and ]\frs. Davies, and at the time he wrote 
the pamphlet he believed all the statements made in the letter to be 
true. Held no justification for his publishing it. 
Tidnwn v. Ainslie (1854), 10 Exch. 63. 

And see Mills and wife v. Spencer and wife (1817), Holt, N. P. 533. 
McGregor v. Thicaites (1824), 3 B. & C. 24 ; 4 D. & R. 695. 
A rumour was current on the Stock Exchange that the chairman of the 
S. E. Ry. Co. had failed ; and the shares in the company consequently fell; 
thereupon the defendant said, " You have heard what has caused the fall 
— I mean, the rumour about the S. Eastern chairman having failed ? " 
Held that a plea that there was in fact such a rumour was no answer 
to the action. 

Watldn V. Hall, L. R. 3 Q. B. 39G ; 37 L. J. Q. B. 125 ; 16 W. 

R. 857 ; 18 L. T. 561. 
See Richards v. Richards, 2 Moo. & Rob. 557. 
If at a meeting of a board of guardians charges were made against the 
j)laintiff, this does not justify the owner of a newspaper in publishing 
them to the world : it is no justilication to plead that such charges were in 
fact made, and that the alleged libel was an impartial and accurate report 
of what took place at such meeting. 

Ptircell v. Solder, 1 C. P. D. 781 ; 2 C. P. D. 215 ; 46 L. J. C. 

P. 308 ; 25 W. R. 362 ; 36 L. T. 416. 
Davison v. Duncan, 7 E. & B. 229 ; 26 L. J. Q. B. 104 ; 3 Jur. 

N. S. 613 ; 5 W. R. 253 ; 28 L. T. (Old S.> 265. 
Popham V. Picklmrn, 7 H. & N. 891 ; 31 L. J. Ex. 133 ; 8 Jur. 
X. S. 179 ; 10 W. R. 324 ; 5 L. T. 846. 



]66 PUBLICATIOX. 

And here note [i great distinction between libel and 
slander. Tlie actual publisher of a libel may be an 
innocent porter or messenger, a mere hand, unconscious 
of the nature of his act; and for which therefore his 
employers shall be held liable, and not he. Whereas in 
every case of the republication of a slander, the pub- 
lisher acts consciously and voluntarily ; the repetition is 
his own act. Therefore if I am in any way concerned 
in the making or publishing of a libel, I am liable for 
all the damage that ensues to the plaintiff from its pub- 
lication. But if I slander A., I am only liable for such 
damages as result directly fi-om that one utterance by 
my own lips. If B. hears me and chooses to carry the 
tale to A.'s master, that is B.'s own act; and should 
A.'s master in consequence dismiss him from his employ- 
ment, B. alone is answerable for that, and not I. In an 
action against me such special damage would be too 
remote. For each publication of a slander is a distinct 
and separate act, and every person repeating it becomes 
an independent slanderer, and he alone is answerable for 
the consequences of his o^vn unlawful act. 

Thus, by the law of EngiaDd as it at iDresent stands, the per- 
son who invents a lie and maliciously sets it in circulation may 
sometimes escape punishment altogether, while a person who is 
merely injudicious may be liable to an action through repeating 
a story which he believed to be the truth, as he heard it told 
frequently in good society. For if I originate a slander against 
you of such a nature that the words are not actionable jyer se, 
the utterance of them is no ground of action, unless special 
damage follows. If I myself tell the story to your employer, 
who thereupon dismisses you, 3^011 liave an action against me ; 
but if I only tell it to your friends and relations and no pecu- 
niary damage ensues from my own comnuuiication of it to any 
one, then no action lies against me ; although the story is sure 
to get round to your master sooner or later. The unfortunate 
man whose lips actually utter the slander to your master, is the 



REPETITION. 167 

only person that can be made defendant ; for it is his publica- 
tion alone which is actionable as causing special damage. See 
fost, c. X., Special Damage. But this apparent hardship only 
arises where the words are not actionable without proof of 
special damage. Where the words are actionable 'per se, the 
jury find tlie damages generally, and will judge from the circum- 
stances which of the various defendants is most to blame. 

There are two apparent exceptions to this rule : 

I. Where by communicating a slander to A., the de- 
fendant puts A. under a moral necessity to repeat it to 
some other person immediately concerned ; here, if the 
defendant knew the relation in which A. stood to this 
other person, lie will be taken to have contemplated this 
result when he spoke to A. In fact, here A.'s repetition 
is the natui'al and necessary consequence of the de- 
fendant's communication to A. 

II. Where there is evidence that the defendant though 
he spoke only to A., intended and desii^ed that A. should 
repeat his words, or expressly requested him to do so : 
here the defendant is liable for all the consequences of 
A.'s repetition of the slander ; for A. thus becomes the 
agent of the defendant. (As to Principal and Agent, 
see Law of Persons, c. XII., ^yost, j)p. 360 — 365.) 

Illustrations. 

Weeks was speaking to Biyce of the plaintiff and said, " He is a rogue 
and a swindler ; I know enough about him to hang him.'^ Bryce repeated 
this to Bryer as Weeks' statement. Bryer consequently refused to trust 
the plaintiff. Held that the judge was right in nonsuiting the plaintiff : 
for the words were not actionable ^jcr se ; and the damage was too remote. 
Ward V. Weeks, 7 Bing. 211 ; 4 M. & P. 796. 
Tlie defendant's -wife charged Mrs. Parkins with adultery. She indig- 
nantly told her husband, her natural protector : he was unreasonable 
enough to insist upon a separation in consequence. Held, that for the 
separation the defendant was not liable. 

Parkins et uz. v. Scott et ux. 1 H. & C. 153 ; 31 L. J. Ex. 331 ; 

8 Jur. N. S. 593 ; 10 W. R. 5G2 ; 6 L. T. 394. 
See Dixon v. Smith, 5 H. & N. 450 ; 29 L. J. Ex. 125. 
H. told Mr. Watkins that the plaintiff', his wife's dressmaker, was a 



1 68 P UBLICA TION. 

woman of immoral cliaracter ; Mr. Watkins naturally informed his wife of 
this charge, and slie ceased to employ the plaintiff. HM that the plaintiff's 
loss of Mrs. Watkins's custom was the natural and necessary consecjuence 
of the defendant's communication to Mr. Watkins. 

Berry v. Handlcn, 16 L. T. 263. 

See Gillett v. BulHvant, 7 L. T. (Old 8.) 490. 

Kendillon v. Malthy, 1 Car. & Marsh. 402. 

It has sometimes been held on the principle of Volenti nonjit 
injuria, that if the only publication proved at the trial be one 
brought about by the plaintiff's own contrivance, the action must 
fail. Thus, in King v. Waring ct ux. 5 Esp. 15, Lord Alvanley 
decided, that if a servant, knowing the character which his 
master will give him, procures a letter to be written, not with a 
fair view of inquiring the character, but to procure an answer 
upon which to ground an action for a libel, no such action can 
be maintained. So in Smith v. Wood, 3 Camp. 323, where the 
plaintiff, hearing that defendant had in his possession a copy of 
a libellous caricature of the plaintiff, sent an agent who asked 
to see the picture, and the defendant showed it him at his 
request, Lord EUeuborough ruled that this was no sufficient 
evidence of publication and nonsuited the plaintiff. 

But these cases so far as the question of piMication merely 
is concerned, must be taken to be overruled by Tlte Duke of 
Brunswick v. Harmer, 14 Q. B. 185 ; 19 L. J. Q. B. 20 ; 14 
Jur. 110; 3 C. & K. 10. Whether or no the plaintiff's conduct 
in himself provoking or inviting the publication on which he 
afterwards bases his action may amount to a ground of privilege 
as excusing the publication made, is a different question, which 
will be discussed j^ost, pp. 230 — 233. See Warr v. Jolly, 6 C. & 
P. 497 ; Shiith v. Mathevjs, 1 M. & Rob. 151 ; Griffiths v. Letuis, 
7 Q. B. Gl ; 14 L. J. Q. B. 197 ; 9 Jur. 370 ; 8 Q. B. 841 ; 15 
L. J. Q. B. 249 ; 10 Jur. 711 ; Force v. Warren, 15 C. B. N. S. 
806 ; W Donoghue v. Hussey, Jr. R. 5 C. L. 124 ; Divyer v. 
Esmonde, 2 L. R. Ir. 243. And indeed in many of the older 
cases the judges say, " there is no sufficient publication to 
support an action for a libel," when they mean in modern 
parlance that the publication was privileged by reason of the 
occasion. See judgment of Best, J., in Faimian v. Ives, 5 B. 
& Aid. 046 ; 1 D. & R. 252 ; 1 Chit. 85. 



CHAPTEE VII. 

JUSTIFICATION. 

The trutli of any defamatory words is, if pleaded, a 
complete defence to any action of libel or slander 
(thongli alone it is not a defence in a criminal trial). 
The onus, however, of proving that the words are true 
lies on the defendant. The falsehood of all defamatory 
words is presumed in the plaintiff's favour, and he need 
give no evidence to show they arc false ; but the 
defendant can rebut this presumption by giving evidence 
in support of his plea that the words are true in sub- 
stance and in fact. If the jury are satisfied that the 
words are true, they must find for the defendant, though 
they feel sure that he spoke the words spitefully and 
maliciously. On the other hand, if the words are false, 
the jury must find for the plaintiff, although they are 
satisfied that the defendant hond fide and reasonably 
believed the words to be true at the time he uttered 
them. 

But the whole libel must be proved true, not a part 
merely. The justification must be as broad as the 
■ charge, and must justify the precise charge. If any 
material part be not proved true, the plaintiff will 
recover damages in respect of such part. (Weaver v. 
Lloyd, 1 C. & P. 295 ; 2 B. & C. 678 ; 4 D. & E. 230; 
Ingram v. Lawson, 5 Bing. N. C. 66 ; 6 Scott, 775 ; 7 
Dowl. 125 ; 1 Arn. 387 ; 3 Jur. 73 ; 6 Bing. N. C. 212 ; 
8 Scott, 471 ; 4 Jur. 151 ; C^ & P. 326.) Thus where 



I70 * JUSTIFICATION. 

a libellous paragrapli in a newspaper is introdiice^l by a 
libellous heading, it is not enough to prove the truth of 
the facts stated in the paragraph, defendant must also 
prove the truth of the heading. [Mountney y. Wattoii, 
2 B. & Ad. 673 ; Chalmers v. ShacMl, 6 C. & P. 475.) 

But where the gist of the libel consists of one specific 
charge which is proved to be true, defendant need not 
justify every expression which he has used in coniment- 
ing on the j^laintifF's conduct. 'Nor, if the substantial 
imputation be proved true, will a slight inaccuracy in one 
of its details prevent defendant's succeeding, provided such 
inaccuracy in no way alters the complexion of the affau*, 
and would have no different effect on the reader than 
that which the literal truth would produce. (Alexander 
V. N.K Bail. Co., 34 L. J. Q. B. 152; 11 Jm-. N. S. 619; 
13 W. E. 651 ; 6 B. & S. 340 ; cf. StocMale v. Tarte, 4 
A. & E. 1016 ; Blake v. Stevens, 4 F. & F. 239 ; 11 L. T. 
544.) If epithets or terms of general abuse be used 
which do not add to the sting of the charge, they need 
not be justified; (Eclioards \. Bell, 1 Bing. 403 ; Morri- 
son V. Ilarmer, 3 Bing. X. C. 767 ; 4 Scott, 533 ; 3 
Hodges, 108;) but if they insinuate some further charge 
in addition to the main imputation, or imj)ly some cir- 
cumstance substantially aggravating such main imputa- 
tion, then they must be justified as well as the rest. 
(Per Maule, J"., in Helsham v. Blachvood, 11 C. B. 129 ; 
20 L. J. C. P. 192 ; 15 Jm-. 861.) In such a case it 
will be a question for the junj whether the substance of 
the libellous statement has been proved true to their 
satisfaction, or whether the fact not justified amounts to 
a separate charge or imputation against the plaintift', 
substantially distinct from the main charge or gist of the 
libel, or at least amoimts to a material aggravation of 
such main charge. ( Warman v. Iline, 1 Jur. 820 ; Weaver 
V. Lloyd, 2 B. & C. 678 ; 4 D. & E. 230 ; 1 C. & P. 295. 



JUS TIFIC- 1 TION. 1 7 1 

Behmis V. Allen, 8 Jur. X. S. 118 ; 3 F. & F. 135.) '' It 
would be extravagant," says Lord Dcnmau (in Cooper v. 
Laioson, 8 Ad. & E. 753 ; 1 P. & D. 15 ; 1 W. W. & H. 
601 ; 2 Jiir. 919 ;) "to say that in cases of libel every 
comment upon facts requires a justification. But a 
comment may introduce independent facts, a justification 
of which is necessary. A comment may be the mere 
shadow of the previous imputation ; but if it infers a 
new fact, tha defendant must abide by that inference of 
fact, and the fairness of the comments must be decided 
upon by the jury." And see Lefroij v. Burmlde, 4 L. E. 
Jr. 556. 

So in criminal cases, if the whole of the plea of 
justification be not proved, the CroAvn will be entitled to 
a verdict. {R. v. Newman, 1 E. & B. 268, 558 ; 22 L. J. 
Q. B. 156 ; Dears. C. C. 85 ; 17 Jm-. 617 ; 3 C. & K. 252.) 

Illustrations. 

The editor of one newspaper called the editor of another " a felon editor." 
Justification that the plaintiif had been convicted of felony and sentenced 
to tweh-e months' imprisonment. The Court of Appeal held the plea bad 
for not averring that the plaintiff was still enduring the punishment 
when the words were uttered ; for that by the 9 Geo. IV. c. 32, s. 3, a 
person who has been convicted of felony and who has undergone the full 
punislnnent is in law no longer a felon. 

Leyman v. Latimer, 3 Ex. D. 15, 352 ; 47 L. J. Ex. 470 ; 25 W. 
R. 751 ; 26 W. R. 305 ; 37 L. T. 360, 819 ; 14 Cox, C. C. 51. 

Words complained of that the plaintiff was a " libellous journalist." Proof 
that he had libelled one man, who had recovered from him damages £100, 
held insufficient, 

Wakley v. Cooke and Healey, 4 Ex. 511 ; 19 L. J. Ex. 91. 

Libel complained of : — that no boys had for the last seven years received 
instruction in the Free Grammar School at Lichfield of which plaintiff was 
head master, and that tlie decay of the scliool seemed mainly attributable to 
the plaintiff's violent conduct. Plea of justification that no boys had in fact 
received instruction in the school for the la.-^t seven years, and that the 
plaintiff had been guilty of violent conduct towards several of his scholars, 
was held bad on sjjccial demurrer, because it wholly omitted to connect the 
decay of the scliool with the alleged violence, and therefore left the second 
part of the libel unjustified. 

Smith V. Parhcr, 13 M. & W. 459 ; 14 L. J. Ex. 52 ; 2 D. & L. 394. 



1 72 JUS TIFICA TION. 

The plaintiff, an architect, had been employed hy a certain committee to 
superintend and cany out the lesloration of Skirlaugh Church ; thereupon 
the defendant, who hud no manner of interest in the question of the em- 
ployment of plaintiff to execute the work, Avrote a letter to a member of 
the committee saying : " I see that the restoration of Skirlaugh Church 
has fallen into the hands of an architect who is a Wesleyan and can have 
no experience in church work. Can you not do something to aveit the 
irreparable loss which must be caused if any of the masonry of this ancient 
gem of art be ignorantly tampered with ? " In an action for libel the 
defendant by Avay of justification alleged " that the facts contained in the 
letter are true, and the opinions expressed in it, whether right or wrong, 
were honestly held and expressed by the defendant," and in his parti- 
culars under this plea " that the plaintiff cannot show experience in 
church work, i.e., of the kind which in the opinion of the defendant was 
re(juisite." 

HeW, that the letter was a libel on the plaintiff in the way of his profes- 
sion or calling. 

That the justification set up was no justification at all, because the letter 
obviously meant that the plaintiff could show no experience in the work in 
which he had been employed by the committee to execute. Verdict for the 
lilaintilFs. Damages £50. 

Boftcrill and (mother v. IVhytehedJ, 41 L. T. 588. 
Libel complained of : — that the plaintiff had " ?;(;/<tY/," leaving some of 
the tradesmen of the town to lament the fashionable character of his enter- 
tainment. Proof tliat he had quitted the town leaving some of his bills 
unpaid, held insufficient. 

CTBrien v. Bnjmit, 16 M. & W. 168 ; 16 L. J. Ex. 77 ; 4 D. & 
L. 341. 
Libel complained of : — that the plaintiff, having challenged his opponent 
to a duel, spent the whole of the night preceding in practising with his 
pistol, and killed his ojijionent, and was therefore guilty of murder. Proof 
that the plaintiff had killed his opponent, and liad been tried for murder, 
held insufficient. For the charge of jMstol practising was considered a 
separate and substantial charge, and it was not justified. 

Hclshani v. Blackwood, 11 C. B. 128; 20 L. J. C. P. 187 ; 15 
Jur. 861. 
The libel complained of was headed — "How Lawyer B. treats his 
clients,"' followed by a report of a particular case in which one client 
of Lawyer B. had been badly treated. That particular case was proved 
to l)e correctly reported, but this was held insufficient to justify 
the heading, which implied that Lawyer B. r/nieralhi treateil his clients 
badly. 

Bishop V. Latimer, 4 L. T. 775. 
See also Mountney v. Walton, 2 B. & Ad. 673. 
Chalmers v. Shackell, 6 C. & P. 475. 

Clement v. Lewis and others, 3 Brod. & Bing. 297 ; 7 Moore, 
200 ; :>, P.. & Aid. 702. 
Libel complained u[' — that the plaintiff, a proctor, had three times been 



JUSTIFICATION. 173 

suspended from practice, for extortion. Proof tliat Le Iiad once been so 
suspended, was held insufticient. 

Olarhsoa v. Luimm, 6 Bing. 26G ; 3 M. & P. G05 ; 6 Bing. 587 ; 
4 M. & P. 356. 

See also Johns v. (iittings, Cro. Eliz. 239. 

Goodburne v. Bownuui and others, 9 Bing. 532. 

Clarke v. Taylor, 2 Bing. N. C. 654 ; 3 Scott, 95 ; 2 Hodges, 65. 

niakc V. Stevens and others, 4 F. & F. 232 ; 11 L. T. 543. 
Bat w lien the libel complained of exposed the " homicidal tricks of those 
impudent and ignorant scamps who had the audacity to jjretend to cure 
all diseases with one kind of pill " — asserted that " several of the rotgut 
rascals had been convicted of manslaughter and fined and imprisoned for 
killing people with enormous doses of their universal vegetable boluses," 
and characterised the plaintiffs' system as " one of wholesale poisoning ; " 
and it was proved at the trial " that the plaintiff's pills when taken in large 
doses, as recommended by the plaintiffs, were highly dangerous, deadly and 
poisonous," and " that two persons had died in consequence of taking large 
quantities of them ; and that the people who had administered these pills 
were tried, convicted, and imprisoned for the manslaughter of these two 
persons," — this ^\ as held a sufficient justification, although tlie expressions 
" scamps," " rascals," and " wdiolesale poisoning" had not been fully sub- 
stantiated : the main charge and gist of the libel being amply sustained, 

Morrison v. Harmcr, 3 Bing. X. C. 767 ; 4 Scott, 533 ; 3 Hodges, 
108. 

Edsall V. Bussell, 4 M. & Gr. 1090 ; 5 Scott, N. R. 801 ; 2 Dowl. 
N. S. 641 ; 12 L. J. C. P. 4 ; 6 Jur. 996. 
The libel complained of was a notice published by a railway company to 
the effect that the plaintiff had been convicted of riding in a train for 
which his ticket was not available, and was sentenced to be fined £l, or to 
three weeks' imprisonment in default of payment. Proof that he had been 
so convicted and fined £l, and sentenced to a fortnight's imprisonment in 
default of payment, held sufficient ; as the error could not have made any 
difference in the effect wliich the notice would produce on the mind of the 
public. 

Alexander v. N. E. R. Co., 34 L. J. Q. B. 152 ; 11 Jur. N. S. 
619 ; 13 W. E. 651 ; 6 B. & S. 340. 

But see Gtvynn v. S. E. R. Co., 18 L. T. 738. 

Biggs v. G. E. R. Co., 16 W. R. 708 ; 18 L. T. 482. 

See also Lay v. Lau'son, 4 Ad. & E. 795. 

Edwards v. Bell and others, 1 Bing. 403. 

Tighe v. Cooj^er, 7 E. & B. 639 ; 2G L. J. Q. B. 215 ; 3 Jur. N. S. 
716. 

This rule that the whole of the libel must be justified 
to enable the defendant to succeed applies to all cases of 
reported speeches or repetitions of slander. Thus, if 
the libel complained of be, " A.B. said that the plaintiff 



1 74 JUS TIFICA TION. 

had been guilty of fraud, etc.," it is of no avail to plead 
that A.B. did in fact make that statement on the occa- 
sion specified. Each repetition is a fresh defamation, 
and the defendant by repeating A.B.'s words has made 
them his own, and is legally as liable as if he had 
invented the story himself. The only plea of justifica- 
tion which will be an answer to the action must not 
merely allege that A.B. did in fact say so, but must go 
on to aver Avith all necessar}^ particularity that every 
word which A.B. is reported to have said is true in 
substance and in fact. In short, a previous publication 
by another of the same defamatory words is no justifica- 
tion for their repetition. (See ante^ c. YI., Publication, 
pp. 161 — 168.) Still less is it any evidence of their truth. 
\r. v. Newman, 1 E. & B. 268, 558; 3 C. & K. 252 ; 
Dears. C. C. 85; 22 L. J. Q. B. 156; 17 Jur. 617.) 

The opposite doctiine was laid down in the Earl of North- 
ampton's case, but the fourth resolution in that case never 
professed to apply to actions of libel, but to actions for slander 
only ; and even in actions of slander it must now be taken not 
to be law. (See De Crespigny v. Wellesley, 5 Bing. 392 ; 2 M. & 
P. 095 ; Tidman v. AinsUc, 10 Ex. 6(J ; M'Phevson v. Daniels, 
10 B. & C. 270 ; 5 M. & P. 251 ; Watldii v. Hall, L. P. 3 Q. B. 
39G ; 87 L. J. Q. B. 125 ; IG W. P. 857 ; IS L. T. 5G1.) 

This rule sometimes works an apparent hardship upon news- 
paper proprietors who, in the ordinary course of their business 
have presented to the public a full, true, and impartial account 
of what really took place at a public meeting, considering no 
doubt that thereby they were merely doing their duty. But 
the consequence of publishing in the papers calumnies uttered 
at some political meeting, or at a vestry board, might be most 
injurious to the person calumniated. The original slander 
mioht not be actionable "per se, or the communication may be 
privileged, so that no action lies against the speaker ; more- 
over the meeting may have been thinly attended, and the 
audience may have known that the speaker was not worthy of 
credit. But it would be a terrible thing for the person* defamed 



I 



REPETITION. 175 

if such words could therefore be printed aiid published to all the 
world, and remain in a permanent form . recorded against him, 
without any remedy being permitted him for the injury caused 
by their extended circulation. See the remarks of Lord Camp- 
bell in Davison v. Dttncan, 7 E. & B. 231 ; 26 L. J. Q. B. 106 ; 
3 Jur. N. S. 613 ; 5 W. R. 253 ; 28 L. T. (Old S.) 265 ; and the 
recommendation of the Select Committee of the House of 
Commons, discussed 2wst, pp. 261 — 263. 

Illustiutions. 

Wool- told Dauiels that M'Phersou was insolvent ; Daniels went about 
telling his friends " Woor says M'Pherson is insolvent." Proof that Woor 
had in fact said so was held no answer to the action. Daniels was liable in 
damages unless he could also prove the truth of Woor's assertion. 

M'Pherson v. Daniels, 10 B. & C. 263 ; 5 M. & R. 251. 
A rumour was current on the Stock Exchange that the chairman of the 
S. E. R, Co. had failed ; and the shares of the company conserjuently fell ; 
thereupon the defendant said, " You have heard what has caused the fall — 
I mean, the rumour about the S. Eastern chairman having failed ? " Held 
that a plea that there was in fact such a rumour was no answer to the action. 

WatJcin v. Hall, L. R. 3 Q. B. 390 ; 37 L. J. Q. B. 125 ; 16 W. 
R. 857 ; 18 L. T. 561. 

Richards v. Pachards, 2 Moo. & Rob. 557. 
At a meeting of the West Hartlepool Improvement Commissioners, one 
of the commissioners made some defamatory remarks as to the conduct of 
the former secretary of the Bishop of Durham in procuring from the 
Bishop a licence for the chaplain of the West Hartlepool cemetery. These 
remarks were reported in the local newspaper ; and the secretary brought 
an action against the owner of the newspaper for libel. A plea of justifi- 
cation, alleging that such remarks were in fact made at a public meeting of 
the commissioners, and that the alleged libel was an impartial and accurate 
report of what took place at such meeting, was held bad on demurrer. 

Davison v. Duncan, 7 E. & B. 229 ; 26 L. J. Q. B. 104 ; 3 Jur. 
N. S. 613 ; 5 W. R. 253 ; 28 L. T. (Old S.), 265. 
The defendants, the printers and publishers of the Manchester Courier, 
published in their paper a report of the proceedings at a meeting of the 
Board of Guardians for the Altrincham Poor-Law Union, at which ex parte 
charges were made against the medical officer of the Union Workhouse at 
Knutsford, of neglecting to attend the pauper patients when sent for. Held 
that the matter was one of public interest ; but that the report was not 
privileged by the occasion, although it was admitted to be a bond fide and a 
correct account of what passed at the meeting ; and the plaintiff recovered 
40s. damages and costs. 

Purcell V. Sowler, 1 C. P. D. 781 ; affirmed on appeal, 2 C. P. D. 
215 ; 46 L. J. C. P. 308 ; 25 W. R. 362 ; 36 L. T. 416. 

See also Pierce v. Ellis, 6 Ir. C, L. R. 64. 



1 76 JUS TIFICA TION. 

So also a newspaper proprietor will be held liable for publishing a report 
made to the vestry by tlndr medical officer of liealth, even although the 
vestry are reqiu'red by Act of Parliament sooner or later to publish such 
report themselves. 

Popham V. Piohhirn, 7 H. & N. 891 ; 31 L. J. Ex. 133 ; 8 Jur. 

N. S. 179 ; 10 W. R. 324 ; 5 L. T. 846. 
See also Charlton v. Watton, 6 C. & P. 385. 
So even in reports of judicial proceedings, which are generally held 
privileged, if the reporter merely sets out the facts as stated by counsel for 
one party, and does not give the evidence, or merely says that all that 
counsel stated was proved, a justification that counsel did in fact say so, 
and that all he stated was in fact proved, is insufficient ; the evidence 
should be set out, and the charges made in the counsel's speech should also 
be justified. 

Lewis V. Walter, 4 B. & Aid. 605. 

Saunders v. Mills, 3 M. & P. 520 ; 6 Bing. 218. 

See also Flint v^ Pike, 4 B. & C. 473 ; 6 D. & R. 528 ; and the 

remarks of Lord Campbell in 
Lewis V. Levy, E. B. & E. 541 ; 4 Jur. N. S. 970 ; 27 L. J. Q. B. 
282. 
It is libellous to publish a highly-coloured account of judicial proceedings, 
mixed with the reporter's own observations and conclusions upon what 
passed in Court, containing an insinuation that the plaintiff had committed 
perjury : and it is no justification to pick out such parts of the libel as 
contain an account of the trial, and to plead that such parts are true and 
accurate, leaving the extraneous matter altogether unjustified. 

Stiles V. Nokes, 7 East. 493 ; same case suh nomine Curr v. Jones, 
3 Smith, 491. 



At the same time a defendant may in mitigation of 
damages justify as to one particular part of the libel, 
provided such part contains imputations distinct from 
the rest. (Fcr Tindal, C.J., in Clarice v. Ta?/Ior, 2 Bing. 
K C. G68 ; 3 Scott, 95 ; 2 Hodges 65.) So he may 
justify as to one part, and demur or plead privilege to 
the rest, or deny that he ever spoke or published the 
rest of the words. But in all these cases the part 
selected must be severable from the rest so as to be 
intelligible by itself, and must also convey a distinct 
and separate imputation against the plaintiff. [McGregor 
V. Gregory, 11 M. & W. 287 ; 12 L. J. Ex. 204 ; 2 D. JN". 
S. 769 ; Churchill v. Hunt, 2 B. & Aid. 685 ; 1 Chit. 480; 



PLEA. 177 

Roberts v. Broimi, 10 Bing. 519 ; 4 M. & Scott, 407; 
Biddulph Y. Chamherlaijnc^ 17 Q. 13. 351.) 

Again, where the words are laid with an innuendo in 
the Statement of Claim, the defendant may justify the 
words, either with or without the moaning alleged in 
such innuendo ; or he may do both. ( Watkln v. Ilall., L. 
E. 3 a B. 396 ; 37 L. J. Q. B. 125 ; IG W. R 857 ; 18 
L. T. 561.) That is, he may deny that the plaintiif 
jDuts the true construction on his words, and assert that, 
if taken in their natural and ordinary meaning, his 
words will be found to be true ; or he may boldly allege 
that the words are true, even in the worst signification 
that can be put upon them. But it seems that a 
defendant may not put a meaning of his oavu on the 
words, and say that in that sense they are true ; for if 
he deny that the meaning assigned to his words in the 
Statement of Claim is the correct one, he must be 
content to leave it to the jury at the trial to determine 
what meaning the words naturally bear. [Bremh'idge v. 
Latimer, 12 W. E. 878; 10 L. T. 816.) In Ireland the 
defendant must justify the innuendo as well as the words. 
{IIortY. Readc, Ir. E. 7 C. L. 551.) 

A justification must always be specially pleaded, and 
it must be pleaded with sufficient particularity to enable 
plaintiff to know precisely what is the charge he will 
have to meet. [I'' Anson v. Stuart, 1 T. E. 748 ; 2 Sm. 
Lg. Cases, 6th ed. 57 (omitted in last edition)). A plea, 
which professes to justify the whole libel, but in effect 
justifies only a part, is a bad plea, and demurrable. A 
plea of justification is always construed strictly [Lc>jman 
V. Latimer, 3 Ex. D. 15, 352), and it must set forth 
issuable facts. [Jones v. Stevens, 11 Price, 235 ; Neiuman 
V. Bailejj, 2 Chit. 665 ; Holmes v. Cateshj, 1 Taunt. 543.) 

" The plea ought to state the charge with the same 
precision as in an indictment." {Per Aldersou, B., in 



178 JUSTIFICA TION. 

IlicJiinhotham y. Leach, 10 M. & W. 363 ; 2 D. N. S. 270.) 
And at the trial it must be proved as strictly as an indict- 
ment for tlie offence it imputes. Indeed, it is said that 
if words amount to a charge of felony, and the defendant 
justifies and the jury find the plea proved, the plaintiff 
may at once be j)ut upon his trial before a petty jury, 
"without the necessity of any bill being found by a grand 
jury. [Per Lord Kenyon in CooJc v. Field, 3 Esp. 134. 
See the note to Prosser v. Rowe, 2 C. & P. 422 ; Johnson 
V. Broivning, 6 Mod. 217.) 

And the Coui't will not assist the defendant to obtain 
evidence in support of his plea of justification. [Metro- 
'politan Saloon Omnibus Co. v. HawJcins, 4 H. & N. 87, 
146 ; 28 L. J. Ex. 201 ; 7 W. E. 265 ; 32 L. T. (Old S.) 
281 ; 5 Jur. N.S. 226.) For the defendant has no right 
to take away the character of the plaintiif, unless he is 
in a position to prove the truth of the charge he has 
made. 

Placing such a plea on the record is evidence of 
malice on the part of the defendant, and may be relied 
upon as such by the plaintift' in aggravation of damages, 
if the defendant either abandons the plea at the trial or 
fails to prove it. {Wanvick v. FoiilJces, 12 M. & W. 508 ; 
WUson V. Robinson, 7 Q. B. 68 ; 14 L. J. Q. B. 196 ; 9 
Jur. 726 ; Simpson v. Robinson, 12 Q. B. 511 ; 18 L. J. 
Q. B. 73; 13 Jur. 187.) 

In a criminal case it is not sufficient to prove the truth of the 
libel ; the defendant must also prove that it was for the pubHc 
benefit that the matters charged should be published (G & 7 
Vict. c. 9G, s. 6, post, p. 389). And indeed before 1843 the truth 
of the libel was no defence at all to an indictment ; the maxim 
prevailed, "the greater the truth, the greater the libel." Yet it 
was always otherwise with a civil action ; there the truth was 
always a complete bar to the action. The benefit or detriment 
to the public, it was said, is in no way in issue in a civil trial ; 



IVHV A DEFENCE. 



179 



tlio plaintiff is seeking to recover damages to put in liis own 
pocket — damages for injury done to a character to which he had 
no right or title. And no doubt in the vast majority of cases 
there is great force in this argument. It is right that culprits 
should appear in their true colours, lest honest men be beguiled, 
" peccata enim nocentlum nota esse et ojwrtere et expeclire." — 
Paulus. And some men may be deterred from committing an act 
of dishonesty or immorality by the knowledge that, if discovered, 
it may always be brought up against them, wherever they go, 
to the end of their lives. But in other cases where a man has 
retrieved his character by long years of good behaviour, it is 
clearly morally wrong for one who knows of his early de- 
linquencies to come and blast the reputation which he has fairly 
earned. Should not an action lie, where the plaintiff's ante- 
cedents have been maliciously raked up and wantonly published 
to the world, without any benefit to society? Prisoners con- 
stantly complain that it is impossible for them to earn a liveli- 
hood by honest labour on coming out of prison, because as soon 
as they obtain employment anywhere, the police inform their 
master of the fact of their previous conviction, and they are at 
once discharged. And in a recent case, R. v. 8eyinore, Win- 
chester Spring Assizes, 1880, counsel intimated that it was the 
rule in the West of England for policemen so to do. But Mr. 
Justice Hawkins at once "expressed his opinion that it was not 
the duty of the police to do so. The police, he considered, ought 
to be the friends of released criminals and help them to return 
to an honest life. That they should go and iifform those who 
had given a convict employment of the fact of his having been 
convicted was simply to drive the convict into crime again. 
He was aware that this was done in many parts of the country, 
but, he for his j^art thought that it should not be; It was an un- 
necessary, an officious, and a cruel act ; and the result of it was 
that once a man was convicted he was branded for the rest of 
his life, and a return to honesty was made most difficult for 
\\\m"— Times, for April 28rd, 1880. No doubt it is part of tlie 
punishment of a criminal that he can never escape from his 
misdeeds ; but, nevertheless, to unduly proclaim them is 
malicious and uncharitable. Kailway companies used formerly 
to placard the names and addresses of offenders against their 
bye-laws ; but lately they have adopted a more merciful but 



i8o JUSTIFICATION. 

equally deterrent form of announcement : — " A 20cissenger was 
convicted," &c. On the whole, however, I do not advocate any 
change in the law in this respect. No law can be framed which 
cannot be made to press harshly on individuals under exceptional 
circumstances and in the hands of uncharitable persons. And 
as a rule the strictness with which a defendant is made to prove 
his plea of justification, is a sufficient protection to a plaintiff: 
for if a man is really malicious in making a statement, he is 
almost sure to go beyond the truth, and say too much. 

In Rome the truth of the libel was undoubtedly a defence 
both to criminal and to civil proceedings. " Eum qui nocentem 
infamavit non esse bonum sequum ob earn rem condemnari." 
Pauli Sent. V. 4. So in Horace, Sat. II. 1. 83, 5 : 

" bona [carmiua] si quis 
Judice condiderit laudatur Ciesare : si quis 
Opprobriis dignmii laceraverit, integer ipse." 

The rescript of Diocletian and Maximian to Victorinus is some- 
times cited as an authority against this view ; but it appears 
to me to have nothing to do with the subject. It seems that 
Victorinus had in the course of his official duty charged a man 
with homicide, and he writes to know if he had thereby made 
himself liable to an action when his term of office had expired. 
The emperors' reply is as follows : — " Impp. Diocletianus et 
Maximianus A.A. Victorino. Si non convicii consilio te aliquid 
injuriosum dixisse probare ipotes, Jides veri a calumnia te de- 
fendit. Si autem in rixam inconsulto calore prolapsus homicidii 
convicium objecisti, et ex eo die annus excessit, cum in- 
juriarum actio annuo tempore prescripta sit ob injurise admissum 
conveniri non potes. P. P. vi. Id. Jul. ipsis iv. et iii. A. A. conss." 
(A. D. 290). Krueger's Codex (ed. 1877), p. 855. Here the 
words Jides veri have generally been understood by the com- 
mentators to mean " proof of the truth of the charge ; " and 
hence they have inferred that the truth was not of itself a 
defence ; the defendant had to prove something more, viz., that 
the imputation was made sine animo coiiviciandi. The in- 
genious author of the note to Starkie's Commentary, p. 20, 
however, translates the passage thus : — If you really spoke the 
words non convicii consilio, then proof of the truth of this will 



ROMAN LAW. i8i 

exculpate you ; tMs being the fact that you spoke non con- 
vicii consilio, so that the passage would mean merely : — 
" proof that you spoke without malicious intent is a bar to the 
action." See post, p. 184. But it is very harsh to make prohare 
potes and Jides veri refer to the same piece of proof. I venture 
to think that Victorinus had heard on good authority that the 
man had been guilty of homicide, and, believing the charge to 
be true, objected to his promotion to some higher office ; and I 
Avould translate the passage ; — " If you spoke without any 
malicious intent, your own honest belief in the truth of the 
charge will be a good defence ; but if in a sudden quarrel, and 
in the heat of the moment you called him homicide without any 
ground for the accusation (inconsulto calore), Avhy, then, you 
must rely on the Statute of Limitations." If I am right, then, 
this rescript does not refer to Justification, but rather comes 
under the defence of Privilege, which will be dealt with in the 
next chapter. 






CHAPTER YIII. 

PEIVILEGED OCCASIONS. 

It is a defence to an action of libel or slander to prove 
that the circumstances under which the defamatory 
words were wi'itten or spoken afforded an excuse for 
tlieii' employment. And this is so, even though the 
words be proved or be admitted to be false. Circum- 
stances will afford an excuse for writing or speaking 
defamatory words, whenever the occasion is such as to 
cast upon the defendant a duty, whethe r_lej2:al or moral, 
of stating what he honestly believes to be the plaintiff's 
character, and of sjDoaldng liis mind fully and freely 
concerning him. In such a case, the occasion is said to 
be ijrivileged^ and the emjDloymcnt of defamatory words 
on such privileged occasion is, in the interest of the 
pnblic, excused. Again, the circumstances will afford 
an excuse for writing or speaking defamatory words, 
whenever such words form part of a confidential com - 
mimication, made by the defendant to his partner or 
friend on a matter in which th ey have a common interest 
and concern ; provided such communication is made 
ho nest ly in furtherance of snch common interest, not 
recklessly or maliciously. Ilere too the occasion is said 
to be "privileged," and though the statement may 
prove, or be admitted, to be false, still its utterance on 
such privileged occasion is excused for the sake of 
common convenience, and for the welfare of society. 



PRIVILEGED OCCASIONS. 183 

Illustrations. 

I am called as a witness, and sworn to speak the truth, the whole truth, 
and nothing but the truth. I may do so without fear of any legal liability, 
even though I am thus compelled to defame my neighbour. 

I am asked for a character of my late servant by one to whom he has 
applied for a situation. I may state in reply all I know against him with- 
out being liable to an action ; provided I do so honestly and truthfully to 
the best of my ability. 

A friend recently come to live in the town privately asks my opinion as 
to such and such a lawyer, doctor, tradesman, workman, &c. I may tell him 
in answer all I know concerning each of them ; both as to their skill and 
ability in their business and also as to their private character, their in- 
tegrity, or immorality. 



Privileged occasions are of two kinds : — 

(i.) Those absolutely privileged, 
(ii.) Those in which the privilege is but qualified. 

In the first class of cases it is so much to the public 
interest that the defendant should speak out his mind 
fully and freely, that all actions in respect of words 
spoken thereon are absolutely forbidden, even though it 
be alleged that the words were spoken falsely, know- 
ingly, and with express malice. But this complete 
immunity is confined to cases where the public service, 
or the due administration of justice, requires it, e.g.^ 
words spoken in Parliament ; reports of military ofiicers 
on military matters to theii- military superiors ; every- 
thing said by a judge on the bench, by a witness in the 
box, &c. &c. In all these cases the privilege afi'orded by 
the occasion is an absolute bar to any action. 

In less important matters, however, where the in- 
terests of the public do not demand that the speaker 
should be freed from all responsibility, but merely 
require that he should be protected so far as he is speak- 
ing honestly for the common good, in these the privilege 
is said not to be absolute but qualified only ; and the 



1 84 PRIVILEGED OCCASIONS. 

plaintiff will recover damages in spite of the privilege, 
if he can prove that the words vrere not nsed hond fide but 
that the defendant availed himself of the privileged 
occasion wilfully and knowingly to defame the plaintifi. 

Illustrations. 

If a M'itness in the box volunteers a defamatory remark, quite irrelevant 
to tlie cause in which he is sworn, with a view of gratifying his own vanity, 
and of injuring the professional reputation of the plaintiff, still no action 
lies against such witness ; the words are still absolutely privileged ; for they 
were spoken in the box. 

Seaman v. Netherdift, 1 C. P. D. 540 ; 45 L. J. C. P. D. 798 ; 

24 W. E. 884 ; 34 L. T. 878 ; 2 C. P. D. 53 ; 46 L. J. C. P. 

128 ; 25 W. E. 159 ; 35 L. T. 784. 

But if I maliciously give a good servant a bad character in order to prevent 

her "bettering herself," and so to compel her ro return to my own service, 

the case is thereby taken out of the privilege, and the servant may recover 

heavy damages. 

In Roman law an intention to injure the plaintiff was essential 
to tlie action for injuria (D. 47. 10. 8, 3 & 4). Hence they never 
presumed malice ; the plaintiff had to prove that the defendant 
expressly intended to impair his good name. Thus if an astro- 
loger or soothsayer in the hond fide practice of his art, de- 
nounces A. as a thief when he is an honest man, A. has no 
action ; for the astrologei" only committed an honest mistake. 
But it would be otherwise if the soothsayer did not really 
believe in his art, but pretended, after some jugglery, to arrive 
at A.'s name from motives of private enmity (D, 47. 10. 15. 
18). That being so, it was unnecessary for the Romans to 
have any law as to qualified privilege ; unless there was some 
evidence of malice the plaintiff was in every case non-suited. 
But neither did they allow any absolute privilege ; on express 
malice proved the plaintiff recovered. Even the fact that the 
libel was contained in a petition sent to the Emperor was no 
protection (D. 47. 10. 15. 29). Two adversaries in litigation 
were of course allowed great latitude ; a certain amount ot 
mutual defamation being essential to the conduct of the case 
and so not malicious : but even here moderation had to be ob- 
served (Pauli Sent. V. iv. 15). The Roman plan had at least 
the merit of simplicity. 



DUTY OF THE JUDGE. 185 

Whether the commimicatiou is, or is not, privileged 
by reason of the occasion, is a question for the judge 
alone, where there is no dispute as to the circumstances 
under which it was made. [Stace v. Grij^th^ L. E. 2 
P. C. 420; 6 Moore, P. C. C. N. S. 18; 20 L. T. 197.) 
If there be any doubt as to these circumstanc es, the jury 
must find wha t the circumstances in fact wer e, or what 
the defend ant~~honestlY believed them to be , if that be 
the point to be determined ; and then, on their findings, 
the judge decides whether the occasion was privileged 
or not. If the occasion was not privileged, and the 
words are. defamatory and false, the judge will dii-ect a 
verdict for the plaintiff. If the occasion was absolutely 
privileged, judgment mil at once be given for the 
defendant. If, however, the judge decides that the 
occasion was one of qualified privilege only, the plaintiff 
must then, if he can, give evidence of actual malice on 
the part of the defendant. If he gives no such evidence, 
it is the duty of the judge to nonsuit him, or to direct a 
verdict for the defendant. If he does give any_evidence 
of malice sufiicient to go to the jury , then it is a 
question for the jury whether or no the defendant 
was actuated by malicious motives. (See j^ost^ c. IX. 
Malice.) 



PART I. 

I. OCCASIONS ABSOLUTELY PRIVILEGED. 

As a rule, when words are published on a privileged 
occasion, the privilege given them by the occasion is 
only qualified^ that is the plaintiff can still be heard to 
say that the defendant did not act under the privilege, 
that he did not intend honestly to discharge a duty, but 



1 86 ABSOLUTE PRIVILEGE. 

maliciously availed himself of the privileged occasion to 
injui'e tlie plaintiff's reputation. But in certain cases 
the privilege is absolute, and no action lies for words 
uttered on such an occasion. There are not many such 
cases, nor is it desirable that there should be many. 
The Courts refuse to extend their number. {Stevens v. 
Sampson, 5 Exch. D. 53 ; 49 L. J. Q. B. 120 ; 28 W. E. 
87 ; 41 L. T. 782.) In all of them the immunity is 
afforded on the ground that it is "advantageous for the 
public interests that such persons should not la any way 
be fettered in their statements." 

(i.) Parliamentary/ Proeeediitffs. 

"No member of either House of Parliament is in any 
way responsible in a court of justice for anything said in 
the House. (Bill of Eights, 1 Wm. & Mary, st. 2, c. 2.) 
And no indictment will lie for an alleged conspiracy by 
members of either House to make speeches defamatory 
of the plaintiff. {Fx parte Wason, L. E. 4 Q. B. 573 ; 
38 L. J. Q. B. 302 ; 40 L. J. (M. C.) 168 ; 17 W. E. 881.) 
But this 23rivilege does not extend outside the walls of 
the House. Therefore, if a member publishes to the 
world the speech he delivered in his place in the House, 
he will be liable to an action as any private individual 
would be. [R. v. Lord Abingdon, 1 Esp. 226; B. v. 
Creevey, 1 M. & S. 273.) Though no doubt if a member 
of the House of Commons merely printed his speech for 
private circulation among his constituents there might 
be a conditional privilege attaching to it, in the absence 
of any malicious intent to injm-e the plaintijQt. (Per 
Lord Campbell in Davison v. Duncan, 7 E. & B. 233 ; 
26 L. J. Q. B. 107, and Cockburn, C.J., in Wason v. 
Walter, L. E. 4 Q. B. 95 ; 8 B. & S. 730 ; 38 L. J. Q. 
B. 42 ; 17 W. E. 169 ; 19 L. T. 416.) 



PROCEEDINGS IN PARLIAMENT. 187 

But at common law, even if the whole House ordered 
the j)ublication of parliamentary reports and papers, no 
privilege attached. {R. v. Williams (1686), 2 Shower, 
471 ; Comb. 18 (see, however, the comments on this 
case m R. v. Wright (1799), 8 T. R. 293) ; StocMale v. 
Hansard (1839), 2 Moo. and Eob. 9 ; 7 C. & P. 731 ; 9 
A. & E. 1—243 ; 2 P. & D. 1 ; 3 Jur. 905 ; 8 Dowl. 
148, 522.) But now, by Stat. 3 & 4 Yict. c. 9, all 
reports, papers, votes, and proceedings, ordered to be 
published by either House of Parliament, are made 
absolutely privileged, and all proceedings at law, civil 
or criminal, will be stayed at once on the production of 
a certificate that they were published by order of either 
House. (See the Act in Appendix.) The only case 
under the Act is the second case of StocMale v. Hansard 
(1840), 11 A. & E. 253, 297. 

Reports in the newspapers of Parliamentary proceed- 
ings are conditionally, not absolutely privileged. (See 
post, p. 257.) 

A petition to Parliament is absolutely privileged, 
although it contain false and defamatory statements. 
{Lake v. King, 1 Saund. 131 ; 1 Lev. 240*; 1 Mod. 58 ; 
Sid. 414.) So is a petition to a committee of either 
House. (See Kane v. Mulvawj, Ir. R. 2 C. L. 402.) 
But a publication of such a petition to others not members 
of the House is of course not privileged. 

(ii.) Judicial Proceedings. 

No action will lie for defama tory statements made or 
sworn in the coiu-se of a judicial proceeding before 
any Court of competent jurisdiction. Everything that 
a judge says on the bench, or a witness in the box, or 
counsel in arguing, is absolutely privileged, so long as it 
is in any way connected with the inquiiy. So are all 



1 88 ABSOLUTE PRIVILEGE. 

documents necessary to the conduct of the cause, such 
as pleadings, affida\dts, and instructions to counsel. 
This immunity rests on obvious grounds of public policy 
and convenience. 

A judge of a superior Court has an absolute immunity, 
and no action can be maintained against him, even though 
it be alleged that he spoke maliciously, knowing his 
A\ords to be false, and also that his words were ii-relevant 
to the matter in issue before him, and wholly unwarranted 
by the CA^dence. It is essential to the highest interests 
of public policy to secure the free and fearless discharge 
of high judicial functions. [Floyd v. BarJccr^ 12 Eep. 24.) 

The judge of an inferior Coui't of record enjoys the 
same immunity in this respect as the judge of a superior 
Coui-t, so long as he has jurisdiction over the matter 
before him. For any act done in any proceeding in which 
he either knows, or ought to know, that he is ^^ithout 
jurisdiction, he is liable as an ordinary subject. [Houlden 
V. Smith, 14 Q. B. 841 ; Calder v. HalM, 3 Moo. P. C. 
C. 28.) And so he would be for words spoken after the 
cause is at an end. (Paris v. Levy, 9 C. B. N. S. 342 ; 
30 L. J. C. P. 11 ; 7 Jur. K S. 289 ; 9 W. E. 562 ; 3 
L. T. 324 ; 6 L. T. 394.) A justice of the peace, how- 
ever, does not enjoy quite so wide an immunity. An 
action will lie against him for defamatorj^ words irrele- 
vant to the matter in issue before him if they be spoken 
maliciously and without reasonable or probable cause. 
(See Kirhy v. Shupsoii, 10 Exch. 358; Gckn v. Hall, 2 
H. & I^. 379.) But if the conduct of the plaintiff be a 
matter relevant to the enquii-y, and the proceedings are 
within the jurisdiction of the magistrate, lie may express 
his opinion of such conduct Avitli the utmost freedom and 
no action will lie. (See the remarks of Lord Coleridge, 
C.J., in Seaman v. Netherclift, 1 C. P. D. 544 ; 45 L. J. 
C. P. 798 ; 24 W. E. 884; 34 L. T. 878.) 



JUDICIAL PROCEEDINGS. 



Illustrations. 

No action will lie against a judge of one of the superior Courts for any- 
judicial act, though it be alleged to have been done maliciously and 
corruptly. 

Frail ^'- BlacIAuni, 3 B. & S. 57G. 
See Floyd v. Barker, 12 Rep. 24. 

Groenvelt v. Burwell, 1 Ld. Rayu). 454, 4G8 ; 12 Mod. 388. 
Dicas V. Lord Brougham, 6 C. & P. 249 ; 1 M. & R. 3()9. 
Taaffe v. Downes, 3 Moo. P. C. C. 36, n. 

Kemp V. Neville, 10 C. B. N. S. 523 ; 31 L. J. C. P. 158; 4 
L. T. 640. 
No action lies against a judge for unjustly censuring and denouncing a 
counsel then engaged in the cause before him, even although it be alleged 
that it was done from motives of private malice. 

Miller v. Hope, 2 Shaw, Sc. App. Gas. 125. 
A County Court judge, while sitting in Court and trying an action in 
which the plaintiff was defendant, said to him : — " You are a harjjy, prey- 
ing on the vitals of the poor." The plaintiff was an accountant and 
scrivener. Held, that no action lay for words so spoken by the defendant 
in his capacity as County Court judge, although they were alleged to have 
been spoken falsely and maliciously and without any reasonable or probable 
cause or any foundation whatever, and to have been wholly irrelevant to 
the case before him. 

Scott V. Stansfield, L. R. 3 Ex. 220; 37 L. J. Ex. 155 ; IG W. R. 
911 ; 18 L. T. 572. 
No action lies against a coroner for anything he says in his address to 
the jury impanelled before him, however defamatory, false, or malicious it 
may be ; unless the j^laintiif can prove that the statement was wholly 
irrelevant to the inquisition and not warranted by the occasion, the Coroner's 
Court being " a Court of Recorel of very high authority." 

Thomas v. Churton, 2 B. & S. 475 ; 31 L. J. Q. B. 139 ; 8 Jur. 

N. S. 795. 
See also Yates v. Lansing, 5 Johns. 283 ; 9 Johns. 395 
(American). 
A chairman of Quarter Sessions may denounce the grand jury as " a 
seditious, scandalous, corrupt, and perjured jury." 
11. V. Skinner, Lolft. 55. 
The judgmeut of a court-martial containing defamatory matter is abso- 
lutely privileged, though it is not a court of record. 

Jekyll V. Sir John Moore, 2 B. & P. N. R. 341 ; 6 Esp. 63. 
Home V. Bentinck, 2 B. & B. 130 ; 4 Moore, 563. 
Oliver v. Bentinck, 3 Taunt. 456. 
A magistrate commented severely on the conduct of a policeman which 
came under his judicial notice, and in consequence the policeman was dis- 
missed from the_force. Held, that no action lay, unless there was clear 



I90 ABSOLUTE PRIVILEGE. 

proof both of express malice and of tlie absence of all reasonable and pro- 
bable cause. Per Lord Denman, C. J., in 

Kendilhn v. Maltby, 2 M. & Eob. 438 ; Car. & Mar. 402 ; 1 Dow. 

& Clark, 495. 
See also Allardice v. Eobertson, 1 Uow. N. S. 514 ; 1 Dow. & 
Clark, 495 ; 6 Shaw & Dun. 242 ; 7 Shaw & Dun. 691 ; 4 
Wil. & Shaw, App. Cas. 102. 
Pratt V. Gardner, 2 Gushing (Massachusetts), 63. 
But a magistrate's clerk has no right to make any observation on the 
conduct of the parties before the court ; and no such observation will be 
2:)rivileged. 

Delegal v. Hnjhiey, 3 Bing. N. C. 950 ; 5 Scott, 154 ; 3 Hodges, 
158 ; 8 C. & P. 444. 



Counsel engaged in a cause are privileged to speak 
any words, however defamatory, that are in accordance 
with their instructions and arc pertinent to the matter in 
question. They may draw any inferences from the facts 
given in evidence, and make any imputations, however 
calumnious : but they ought not to make reckless charges 
of which they can give no evidence. For strong and 
exaggerated words they cannot be called in question, 
unless the charge conveyed by such words be wholly 
unjustified by the evidence before the Court. (Brook 
V. Sir Henry Montague (1G06), Cro. Jac. 90 ; Mackcuj v. 
Ford, 5 H. & Ts^. 792 ; 29 L. J". Ex. 404 ; 6 Jm-. Ts^. S. 
587 ; 8 W. E. 586 ; Hodgson v. Scarlett, 1 E. & Aid. 
232.) The law, in fact, trusts a barrister " with a privi- 
lege in respect of liberty of speech which is in practice 
bounded only by his o^n sense of duty." [Per Erie, 
C.J., 32 L. J". C. P. 147, 8.) 

An attorney acting as an advocate in a county court 
enjoys the same immunity as counsel. [Mackayx. Ford, 
5 H. & l!^. 792.) So with a proctor in an ecclesiastical 
court. {Higginson v. Flaliertg, 4 Ir. C. L. E. 125.) The 
party himself, because of his ignorance of the proper 
mode of conducting a case, is allowed even greater lati- 
tude. {Per Holroyd, J., in Hodgson v. Scarlett, 1 B. & 



COUNSEL. WITNESSES. 191 

Aid. 244.) Any observation made b}^ one of the jury 
diu'ing the trial is equally privileged, provided it is 
pertinent to the enquiry. {R. v. Skinner., Lofft. 55.) 
And so is any presentment by a grand jury. 

A witness in the box is absolutely privileged in 
answering all the questions asked him by the counsel on 
either side ; and even if he volunteers an observation (a 
practice much to be discouraged) still if it has reference 
to the matter in issue, or fairly arises out of any question 
asked him by counsel, though only going to his credit, 
such observation will also be privileged. [Seaman v. 
Netherclift, 1 C. P. D. 540 ; 2 C. P. D. 53 ; 46 L. J. C. 
P. 128.) But a remark made by a witness in the box, 
wlioll}^ irrelevant to the matter of enquii'y, uncalled for 
by any question of counsel, and introduced by the 
witness maliciously for his own purposes, would not be 
privileged, and would also probably be a contempt of 
coui't. So, of course an observation made by a witness 
while waiting about the Court, before or after he has 
given his evidence, is not privileged. [Trotman v. Dunn, 
4 Camp. 211 ; Lijnani v. Goiuing, 6 L. R. Ir. 259.) Nor 
is a private letter written to the judge to influence his 
decision. [Gould v. Hume, 3 C. & P. 625.) Such a letter 
is strictly a contempt of coui't. 

Every affidavit sworn in the course of a judicial pro- 
ceeding before a Coiu't of competent jurisdiction is abso- 
lutely privileged, and no action lies therefor, however 
false and malicious may be the statements made therein. 
{Revis V. Smith, 18 C. B. 126 ; 25 L. J. C. P. 195 ; 
Henderson v. Broomhead, 4 H. & N. 569 ; 28 L. J. Ex. 
360 ; 5 Jur. N. S. 1175.) So are all pleadings, and 
instructions to counsel. [See Bank of British North 
America v. Stroncj, 1 App. Cas. 307 ; 34 L. T. 627.) So 
are articles of the peace exhibited against the j)laintiff. 
The only exception is where an affidavit is sworn reck- 



192 ABSOLUTE PRIVILEGE. 

Icssly and malicioiisl}' before a Court that has no jnris- 
diction in the matter, and no power to entertain the 
proceeding. {Bucldey v. TFoor/, 4 Eep. 14 ; Cro. Eliz. 
230 ; R.y. Sallshirij.i 1 Ld. Eaym. 341 ; Lewis v. Levy, 
E. B. & E. 554 ; 27 L. J. Q. B. 282 ; 4 Jnr. K S. 490.) 
In all other cases the plaintiff's only remedy is to indict 
the deponent for perjury, if he dare. [Doyle y. G'Dolierty, 
Car. & Mar. 418; Astley v. Youngc, 2 Biut. 807.) The 
Courtr-will however, sometimes order scandalous matter 
in such an affidavit to be exjDunged. ( Christie v. Christie, 
L. E. 8 Ch. 499 ; 42 L. J. Ch. 544 ; 21 W. E. 493 ; 28 
L. T. 607.) But even for matter thus exjDunged, no 
action can be brought. [Kennedy v. Hilliard, 10 Ir. C. 
L. E. 195; 1 L. T. 578.) 

In short, "neither party, witness, counsel, jury, or 
judge can be jD^i^t to answer civilly or criminally for 
ivords sjmJcen in office?'' [Per Lord Mansfield in R. v. 
Skinner J Lofltt. 55.) 

Illustrations. 

Defemlant, an expert in liandwiiting, gave evidence in the Probate Court 
in the trial of Davies v. Mmj, that, in his opinion, the signature to the will 
in question was a forgery. The jury found in favour of the will, and the 
presiding judge made some very disparaging remarks on defendant's 
evidence. Soon afterwards defendant was called as a •wdtness in favour of 
the genuineness of another document, on a charge of forgery before a 
magistrate. In cross-examination he was asked whether he had given 
evidence in the suit of Davies v. May, and whether he had read the judge's 
remarks on his evidence. He answered, " Yes." Counsel asked no more 
questions, and defendant insisted on adding, though told by the magistrate 
not to make any further statement as to Davies v. May : " I believe that 
will to be a rank forgery, and shall believe so to the day of my death." An 
action of slander for these words having been brought by one of the attest- 
ing witnesses to the will : held, that the words were spoken by defendant as 
a witness, and had reference to the inquiry before the magistrate, as they 
tended to justify the defendant, whose credit as a witness had been im- 
pugned ; and that the defendant was therefore absolutely privileged. 

Seaman v. Nether clift, 1 C. P. D. 540 ; 45 L. J. C. P. 798 ; 24 

W. R. 884 ; 34 L. T. 878 ; (C. A.) 2 C. P. D. 53 ; 46 L. J. 

C. P. 128 ; 25 W. E. 159 ; 35 L. T. 784. 
A servant summoned his master before a Court of Conscience for a week's 



JUDICIAL PROCEEDINGS. 193 

wages. The master said : " He has been transported before, and ought to 
be transported again. He has been robbing me of nine quartern loaves a 
week." Lord Ellenborough held the remark absolutely privileged, if the 
master spoke them in opening his defence to the Court ; but otherwise if 
he spoke them while waiting aljout the room and not for the purpose of his 
defence. 

Trotman v. Dunn, 4 Camp. 211. [N.B. — The latter part of the 
headnote to this case is misleading.] 
A charge of felony made by the defendant when applying in due course 
to a justice of the peace for a warrant to apprehend the plaintiff on that 
charge is absolutely privileged. 

Ram V. Lamley, Hutt. 113. 
See Johnson v. Evans, 3 Esp. 32. 
Weston v. Dobniet, Cro. Jac. 432. 
Dancaster v. Hewson, 2 Man. & R. 176. 
Defamatory communications made by witnesses or officials to a Court- 
martial, or to a Couit of Inquiry instituted under articles of war, are abso- 
lutely privileged. 

Keighley v. Bell, 4 F. & F. 763. 

Daivhins v. Lord Rokehj, L. R. 8 Q. B. 255 ; 42 L. J. Q. B. 
63 ; 21 W. R. 544 ; 4 F. & F. 806 ; 28 L. T. 134 ; L. R. 
7 H. L. 744 ; 45 L. J. Q. B. 8 ; 23 W. R. 931 ; 33 L. T. 
196. 
No action will lie for defamatory expressions against a third party, con- 
tained in an affidavit made and used in the proceedings in a cause, though 
such statements be false, to the knowledge of the part}' making them, and 
introduced out of malice. 

Henderson v. Broomhead, 28 L. J. Ex. 360 ; 4 H. & N. 569 ; 5 

Jur. N. S. 1175. 
Astley V. Younge, 2 Burr. 807 ; 2 Ld. Kenyon, 536. 
Revis V. Smith, 18 C. B. 126 ; 25 L. J. C. P. 195 ; 2 Jur. N. S. 

614. 
Hartsock v. Reddick, 6 Blackf. (Indiana), 255. 
If application be bond fide made to a Court which the defendant by a 
pardonable error honestly believes to have a jurisdiction which it has not, 
the privilege will not be lost merely by reason of this error. 
Buckley v. JFood, 4 Rep. 14 ; Cro. Eliz. 230. 
McGregor v. Thwaites, 3 B. & C. 24 ; 4 D. & R. 695. 
Thorn v. Blanchard, 5 Johns. 508. 
But in other cases an affidavit made voluntarily when no cause is 
pending, or made coram non jiulice, is not privileged as a judicial 
proceeding. 

Muloney v. Bartley, 3 Camp. 210. 
An attorney's bill of costs is in no sense a judicial proceeding, though 
dcdivered under a judge's order, and can claim no privilege. 
Ikuton v. Doivnes, 1 F. & F. 668. 
Reports of judicial proceedings aw not aJisohiJchi privileged, however fair 



194 ABSOLUTE PRIVILEGE. 

and accurate they may be ; the pLaintiff may still prove that the reporter 
acted maliciously in sending the report to the newspaper. 

iitemns v. Sami^son, 5 Exch. D. 53 ; 49 L. J. Q. B. 120 ; 28 W. E. 
87 ; 41 L. T. 782. 

Salmon v. Isaac, 20 L. T. 885. 



(iii.) Naval and Military affairs, 6^^c. 

A similar immunity, resting also on obvious grounds 
of public policy, is accorded to all reports made by a 
military officer to his military superiors in the coiu'se of 
his duty, and to evidence given by any military man to 
a court martial or other military court of enquiry ; it 
being essential to the welfare and safety of the State 
that military discipline should be maintained without 
any interference by civil tribunals. In short, " all acts 
done in the honest exercise of military authority are 
privileged." The law is, of course, the same as to the 
navy. ISTaval and military matters are for naval and 
military tribunals to determine, and not the ordinary 
civil courts. [Hart v. Gumpach, L. E. 4 P. C. 439 ; 9 
Moore P. C. C. Ts^. S. 241 ; 42 L. J. P. C. 25 ; 21 W. E. 
365 ; DawJdm v. Lord Paulet, L. E. 5 Q. B. 94 ; 39 
L. J. Q. B. 53; 18 W. E. 336; 21 L. T. 584; DaivJcins 
V. Lord RoJcehj, L. E. 7 H. L. 744 ; 45 L. J". Q. B. 8 ; 
23 W. E. 931 ; 33 L. T. 196 ; 4 F. & F. 806.) A simi- 
larly absolute privilege extends to all acts of State, and 
to the official notification thereof in the London Gazette, 
to all State papers, and to all advice given to the Cro^vn 
by its ministers. 

Illnstrations. 

A military Court of Inquiry may not be strictly a judicial tribunal, but 
where such Court has been assembled under the orders of the General 
Commanding-in-Chief in conformity Avith the Queen's Regulations for the 
government of the army, a witness who gives evidence thereat stands in the 
same situation as a witness giving e^ddence before a judicial tribunal, and 



MILITARY AND NAVAL AFFAIRS. 195 

all statements made by him thereat, whether orally or in writing, having 
reference to the subject of the inc[ixiry, are absolutely pri\dlegecl. 

Daivkins v. Lord Rokeby, L. R. 7 H. L. 744 ; 45 L. J. Q. B. 8 ; 
23 W. E. 931 ; 33 L. T. 196 ; in the Exch. Ch. L. R. 8 Q. B. 
255. 

And see Keighley v. Bell, 4 F. & F. 763. 

Home V. Bentinck, 2 B. & B. 130 ; 4 Moore, 563. 
The defendant, being the plaintiff's superior officer, in the course of his 
military dutj^ forwarded to the Adjutant-General certain letters written 
by the j^laintiff, and at the same time, also in accordance with his military 
dut}', reported to the Commander-in-Chief on the contents of such letters, 
using words defamatory of the plaintiff. It ^^■as alleged that the defendant 
did so maliciously, and without any reasonable, probable or justifiable 
cause, and not in the bond fide discharge of his duty as the plaintiff's 
superior officer. Held, on demurrer, by the majority of the Court of Q. B. 
(Mellor and Lush, J.J.), that such reports being made in the course of 
military duty were absolutely privileged, and that the civil courts had no 
jurisdiction over such purely military matters. Cockburn, C.J., dissented 
on the grounds that it never could be the duty of a military officer falsely, 
maliciously and without reasonable and probable cause to libel his fellow- 
officer, that the courts of common law have jurisdiction over all wilful and 
unjust abuse of military authority, and that it would not in any way be 
destructive of military discipline or of the efficiency of the army to submit 
questions of malicious ojjpression to the opinion of a jury. 

Dairkms v. Lord Paulet, L, R. 5 Q. B. 94 ; 39 L. J. Q. B. 53 ; 
18 W. R. 336 ; 21 L. T. 584. 
[X.B. — There was no appeal in this case. The arguments of Cockburn, 
C.J., deserve the most careful attention. In Dawkins v. Lord Rokeby, supra, 
the decision of the House of Lords turned entirely on the fact that the 
defendant was a ■^^'itness. Neither Kelly, C.B. nor any of the Law Lords 
(except perhaps Lord Penzance,) rest their judgment on the incompetenc)' 
of a court of common law to inquire into purely military matters. The 
Court of Exchecjuer Chamber no doubt express an opinion that " qiiestions 
of military discipline and military duty alone are cognisable only by a 
military court, and not by a court of law," (L. R. 8 Q. B. 271.) But after 
referring to " the eloquent and powerful reasoning of L.C.J. Cockburn in 
Daivkins v. Lord F. Paulet," the Court goes on to express its satisfaction 
iliat the question " is yet open to tuial consideration before a court of the 
last resort." However in a court of first instance, at all events, it miist 
now be taken to be the law that the civil courts of common law can take 
no cognisance of imrely military or jnirely naval matters (Sutton v. John- 
stone (1785), 1 T. R. 493 ; Grant v. Gould (1792), 2 Hen. Bl. 69 ; Baridss 
\. Keppel (1766), 2 Wils. 314) ; but wherever the civil rights of a person in 
the military or naval service are affected by any alleged o^^pression or 
injustiee at the hands of his superior officers or any illegal action on the 
])art of a military or naval tribunal, there the civil courts may interfere. 
7/..' Manseryh, 1 B. & S. 400 ; 30 L. J. (Q. B.), 296 ; Warden v. Bailey, 4 
Taunt. 67.] 

2 



196 PRIVILEGED OCCASIONS. 

But private letters written by the commanding officer of the regiment to 
his immediate superior on military matters, as distinct from his official 
reports, are not absolutely privileged ; but the question of malice should 
be left to the jury. 

Dichon v. Earl of IVilton, 1 F. & F. 419. 
Dickson v. Combcrmere, 3 F. & F. 527. 
[N.B. — If this be not the distinction, these cases must be taken to be 
overruled by the cases cited above. See L. E. 8 Q. B. 272-3.] 

By a general order it was declared that all unemployed Indian officers 
ineligible for public employment by reason of misconduct or physical or 
mental inefficiency should be removed to the pension list. Under this 
order the plaintiff was removed to the pension list and a notification of 
sucli removal was published in the Iiulian Gazette. Held, on demurrer, 
that no action lay either for the removal of the plaintiff, or for the official 
publication of the fact : although special damage was alleged. 

Grant v. Secretary of State for India, 2 C. P. D. 445 ; 25 W. R. 

848 ; 37 L. T. 188. 
See Doss V. Secretary of State for India in Coiuicil,Jj.Jl. 19 E(£. 

509 ; 23 W. E. 773 ; 32 L. T. 294. 
And Oliver v. Lord Wm. BentincJc, 3 Taunt. 456. 



PART II. 

II. QUALIFIED PEIVILEGE. 



Cases of qualified privilege may be grouped under 
three heads : 

ij Where circumstauces cast upon the defendant the 
duty of making a communication to a certain 
other j)erson, to whom he makes such commu- 
nication in the bond fide performance of such 
duty. 

II. Where the defendant has an interest in the sub- 
ject matter of the communication, and the person 
to whom he communicates it has a corresponding 
interest. 
III. Fair and impartial reports of fhi proceedings of 
any Coiu't of Justice or of Parliament. 



QUALIFIED PRIVILEGE. tgj 

In all these instances, if the communication has been 
made fairly, impartially, mthout exaggeration or the 
introcTucHon of irrelevant calumniatory matter, the com- 
munication is held privileged. The first two classes are 
often stated as one, and cases may frequently occur, 
which may seem to fall in either or both of them. But 
the distinction which I propose to draAv between them is 
this : — in the first class of cases, the defendant makes 
the communication, perhaps to an entire stranger, gene- 
rallj^ to one mth whom he has had no previous concern ; 
and he does so because he feels it to be his duty so to 
do. The person to whom he makes the communication 
is imder no corresponding obligation ; and generally has 
no common interest with the defendant in the matter. 
The defendant's duty would be the same to Avhomsoever 
the communication had to be made. 

In the second class of cases, however, there must have 
been an intimate relationship or connexion already 
established between the defendant and the person to 
whom he makes the communication, and it is because of 
this relationship that the communication is privileged. 
The same words, if uttered to another person Avith whom 
the defendant had no such connexion, would not be 
privileged. 

The thii'd class of eases might be included in either of 
the two preceding, for it is the duty of a newspaper 
reporter to present to the public fair and impartial 
reports of such proceedings, while on the other hand, as 
one of the public, he has a common interest with the 
public in ensuiing that such proceedings should be 
reported with accui-acy and uniformity. 

Bond fide comments on matters of public interest, 
which are sometimes treated as a fourth class of privi- 
leged communications, have been dealt Avith under the 
head of Defamatory Words, c. II., (intc^ pp. 34-52. 



IL 



I 



193 QUALIFIED PRIVILEGE. 

I. Where circumstances exist, or are reasonably 

BELIEVED BY THE DEFENDANT TO EXIST, WHICH CAST 
UPON HIM THE DUTY OF MAKING A COMMUNICATION 
TO A CERTAIN OTHER PERSON, TO WHOM HE MAKES 
SUCH COMMUNICATION IN THE ^O.VJ FILE PERFORM- 
ANCE OF SUCH DUTY. 

The duty may either be one which the defendant 
owes to society or one which he owes to his family or to 
himself. It will be convenient therefore to treat these 
cases in the following order : — 

A. Communications made in piu'suance of a duty 
owed to society. 

(i.) Characters of servants, 
(ii.) Other confidential communications of a private 

natiu-e. 
(iii.) Information given to an}^ public officer im- 
puting crime or misconduct to others. 

B. Communications made in self-defence. 

(iv.j Statements necessary to protect the defendant's 

private interests, 
(v.) Statements provoked or invited by previous 

words or acts of the plaintiff. 

In all these cases the duty referred to need not be one 
binding at law : any " moral or social duty of imj)erfect 
obligation " will be sufficient. {Per Lord Campbell in 
Harrison v. Bush, 5 E. & B. 344; 25 L. J. Q. B. 25.) 
And it is sufficient that the defendant should honestly 
believe that he has a duty to perform in the matter, 
although it may turn out that the circumstances were 
not such as he reasonably concluded them to be. 
{Whitelcy V. Adams, 15 C. B. N. S. 392 ; 33 L. J. C. P. 
89 ; 12 W. E. 153 ; 9 L. T. 483 ; 10 Jur. IS". S. 470.) 



DUTY TO SOCIETY. 



199 



I 



It is a question of lona fides., iu determining which 
the Court will look at the cii-cumstances as they pre- 
sented themselves to the mind of the defendant at the 
time of publication ; supposing of course that he is ' 
guilty of no laches, and does not wilfully shut his eyes 
to any source of information. If indeed there Avere 
means at hand for ascertaining the truth of the matter, 
of which the defendant neglects to avail himself and 
chooses rather to remain in ignorance when he might 
have obtained full information, there will be no pretence 
for any claim of privilege. 

Above all, the defendant must at the date of the com- 
munication, implicitly believe in its truth. If a man 
knowingly makes a false charge against his neighbour, 
he cannot claim privilege. It never can be his duty 
to cii'culate lies. 

" For, to entitle matter, otherwise libellous, to the 
protection which attaches to communications made 
in the fulfilment of a duty, hona fides., or, to use our 
own equivalent, honesty of purpose, is essential; and 
to this, again, two things are necessary ; I, that the 
communication be made not merely in the course of duty, 
that is, on an occasion which would justify the making 
it, but also from a sense of duty; 2, that it be made 
with a belief of its truth." (Per Cockburn, C.J., in 
DaivJcins v. Lord Pcmlet., L. E. 5 Q. B. at p. 102.) 

And even where the defendant, acting under a strong 
sense of duty, makes a communication which he reason- 
ably believes to be true, still he must be careful not to 
be led aAvay by his honest indignation into exaggerated 
or unwarrantable exjDressions. For the privilege extends 
to nothing which is not justified by the occasion. Thus 
a letter may be privileged as to one part and not as to 
the rest. ( Warren v. Warren, I C. M. & K. 251 ; 4 Tyr. 
850 ; Huntleij v. Ward, 6 C. B. N. S. 514 ; 1 F. & F. 



200 (2UALIFIED PRIVILEGE. 

552 ; 6 Jur. JN". S. 18 ; tUmmonch v. Dunnc^ Ir. E. 5 C. L. 
358.) 

And GYen where the expressions employed are allow- 
able in all respects, still the mode of publication may 
take them out of the privilege. Confidential commui;ii- 
cations should not be shouted across the street for all 
passers-by to hear. Kor should they be committed to a 
post card or a telegram, which others Avill read. They 
should be sent in a letter properly sealed . and fastened. 
If the words be spoken, the defendant must be careful 
in whose presence he speaks. He should choose a time 
when no one else is by except those to whom it is his 
duty to make the statement. It is true that the acci- 
dental presence of some third person, unsought by the 
defendant, will not take the case out of the privilege ; 
but it would be otherwise if the defendant pui'posely 
sought an opportunity of making a communication prima 
facie privileged in the presence of the very persons who 
were most likely to act upon it to the prejudice of the 
plaintiff. (See /'o-sf, c. IX. Malice.) 



A. COMMUNICATIOXS MADE IN PUESUANCE OF A DUTY 
OWED TO SOCIETY. 

(i.) Characters of servants. 

The instance that occurs most frequently in ordinary 
life of this first class of privileged communications is 
where the defendant is asked as to the character of his 
former servant, by one to whom he or she has applied 
for a situation. A duty is thereby cast uj)on the former 
master to state fidly and honestly all that he knows 
either for or against the servant ; and any communica- 
tion, made in the performance of this duty, is clearly 
privileged for the sake of the common convenience of 



SERVANTS' CHARACTERS. 201 

society, even though it should tm*n out that the former 
master was mistaken in some of his statements. But if 
the master, knowing that the servant deserves a good 
character, yet, having some grudge against him, or from 
some other malicious motive, deliherately states what he 
knows to be false, and gives his late servant a bad cha- 
racter, then such a communication is not a performance 
of the duty, and therefore is not privileged. There is, 
in fact, in such a case, evidence of express malice which 
" takes the case out of the privilege." 

No one is bound to give a character to his servant 
when asked for it. {Carrol v. Bird, 3 Esp. 201.) The 
old statute 5 Eliz. c. 4, which required a master in 
certain cases to satisfy two justices of the peace that he 
had reasonable and sufficient cause for putting away his 
servant, has long been obsolete, and now is wholly 
repealed by iha 38 & 39 Vict. c. 86, s. 17. But if any 
character is given, it must be one fully warranted by 
the facts, and not prompted by unworthy motives. 

If, after a favourable character has been given, facts 
come to the knowledge of the former master which 
induce him to alter his opinion, it is his duty to inform 
the person to whom he gave the character of his altered 
opinion. Hence a letter ^\Titten to retract a favourable 
character previously given, will also be privileged. 
{Gardner v. ^lade, 13 Q. B. 796; 18 L. J. Q. B. 334; 
13 Jur. 826 ; Child v. Affleck cV luife, 9 B. & C. 403 ; 4 
M. & E. 338.) 

So again if I take a servant Avith a good character 
given her by B., and am sadly disappointed in her, I 
may write and inform B. that she does not deserve the 
character he gave her, so that he may refrain from 
recommending her to others ; and such a letter would be 
privileged. {Dixon v. Parsons, 1 F. & F. 24.) But see 
the dicta in Fryer v. Kinnerslejj, 1 5 C. B. N. S. 429 ; 



2or QUALIFIED PRIVILEGE. 

33 L. J. C. P. 96; 10 Jur. N. S. 441. A master may 
also warn his present servants against associating with 
a former servant whom he has discharged, and state his 
reasons for dismissing him. [Somerville v. Hcmkins, 10 
C. B. 590 ; 20 L. J. C. P. 131 ; 15 Jui-. 450.) 

Bnt if I happen to hear that a discharged servant of 
mine is about to enter the service of B., it may be ques- 
tioned whether it is my duty to write off at once and 
inform B. of the servant's misconduct. It is certainly 
safer to wait till B. applies to me for the servant's 
character. Eagerness to prevent a former servant ob- 
taining another place has the appearance of malice, 'and 
if it were found that I wrote systematically to every 
one to whom the plaintiif applied for work, the jury 
would jDrobably give damages against me. On the 
other hand, if B. was an intimate friend or a relation 
of mine, and there was no other evidence of malice 
except that I volunteered the information, the occasion 
would still be privileged. In short when a master 
" volunteers to give the character, stronger evidence 
will be required that he acted lona fide., than in the case 
where he has given the character after being required so 
to do." {Per Littledale, J., in Pattison v. Jones ^ 8 B. & 
Cr. p. 586.) 

lUustrations. 

After a mercantile firm has given to one of its clerks a general recom- 
mendation by means of -whicL. lie obtains a situation, if a partner subse- 
cj^uently discover facts wliich alter his opinion of that clerk's character, it is 
his duty to communicate the new facts and his change of opinion to the 
new employer of that clerk, in order to guard against his being misled 
by the previous recommendation of the firm. 

Fowlcs V. Boiven, 3 Tiffany (30 N. Y. E.), 20. 

Sir Gervas Clifton never made any complaint of his butler's conduct wliile 
he was with him ; but he s\;ddenly dismissed him without notice and 
without a month's wages. The butler (naturally, but illegally) refused to 
leave the house without a month's wages ; a violent altercation took place, 
and eventually a policeman was sent for who forcibly ejected the butler. 
Sir Gervas subsequently gave the butler a very bad character, in too strong 



CONFTDENTTAL COMMUNICATIONS. 203 

terms, and making some charges against him which were wholly unfounded. 
Verdict for the plaintiff. Damages, £20. New trial refused. 
Rogers v. Clifion, 3 B. & P. 587. 
The defendant on being applied to for the character of the plaintiff, who 
had been his saleswoman, charged her with theft. He had never made 
such a charge against her till then ; he told lier that he would say nothing 
about it if she ]-esumed her employment at his house ; subsequently he said 
that if she would acknowledge the theft he would give her a character. 
Hdd, that there was abundant evidence that the charge of theft was made 
mala fide, with the intention of compelling plaintiff to return to defendant's 
service. Damages, £60. 

Jackson V. Hopim'ton, IG C. B. N. S. 829 ; 12 W. E. 913 ; 10 
L. T. 529. 
If a master about to dismiss his servant for dishonesty calls in a friend 
to hear what passes, the presence of such third person does not take away 
privilege from words which the master then uses, imputing dishonesty. 

Taylor v. Haivhins, 16 Q. B. 308 ; 20 L. J. Q. B. 313 ; 15 Jur. 
746. 
Where a master discharged his footman and cook, and they asked him 
his reason for doing so, and he told the footman, in the absence of the cook, 
that " he and the cook had been robbing him ; " and told the cook, in the 
absence of the footman, that he had discharged her " because she and the 
footman had been robbing him." Held, that these were privileged commu- 
nications as respected the absent parties, as well as those to whom they 
were respectively made. 

Manhy v. Witt, \ IS C. B. 544 ; 25 L. J. C. P. 294 ; 2 Jur. 
Eadmead v. Witt ] N. S. 1004. 



(ii.) Other confidential communications of a private 
nature. 

[a) Answers to confidential inquiries. 

The principles which apply to characters given to 
servants, govern also all other answers to priva te_and 
confide ntiaHnguirigs . 

If the owner of a vacant farm ask me as to the cha- 
racter of a person applying to become his tenant, my 
answer would be privileged. So if a friend of mine 
comes down into the country to live near me, and asks 
my advice as to the tradesmen, or doctor, he shall 
employ, I may tell him my opinion of the various trades- 



204 QUALIFIED PRIVILEGE. 

men, or doctors, in tlie locality, without fear of an action 
for slander. 

In short, ^vlienever in answering an inquii*y the de- 
7 fendant is acting bond fide in the discharge of any legal, 
j moral, or social duty, his answer will be privileged. 
" Every one owes it as a duty to his fellow men to state 
what he knows about a person, when inquiiy is made." 
{Pel- Grove, J., in Rohshaw v. Smithy 38 L. T. 423. And 
see Lentner v. Mer field (C. A.) ; Times for May 6th, 
1880.) 

So too it is a duty every one owes to society to assist 
in the discovery of a criminal, and to afford all informa- 
tion which will lead to his conviction. " It is a perfectly 
privileged commimieation, if a party who is interested 
in discovering a ^\Tong doer, comes and makes inquiries 
and a person in answer makes a discovery, or a bond fide 
communication which he laiows, or believes to be true, 
although it may possibly aifect the character of a third 
person." {Per Parke, B., in Kme v. iSV?/r//, 3 M. & ^\ . 
302.) 

And when once such a confidential inquiry is set on 
foot, all subsequent intervicT^s between the parties will 
be privileged, so long as Avliat takes place thereat is still 
relevant to the original inquir3\ {Beatson v. Skene, 5 
H. & N. 838 ; 29 L. J. Ex. 430 ; 6 Jm-. ]^. S. 780 ; 2 L. T. 
378 ; Hoptvood v. Thorn, 8 C. B. 293 ; 19 L. J. C. P. 94 ; 
14 Jur. 87; Wallace v. Carroll, 11 Ir. C. L. E. 485.) 

Of course the defendant must honestlv believe in the 
truth of the jJiajmLhe inakes at the time he makes it. 
And this implies that he must have some ground for the 
assertion : it need not be a conclusive or convincing 
ground : but no charge should ever be made recklessly 
and wantonly, even in confidence. The inquirer should 
be put in possession of all you know, and of yom- means 
of knowledge ; if your only means of knowledge is hear- 



CONFIDENTIAL ADVICE. 205 

say, tell him so : do not state a rumour as a fact ; and 
in repeating a rumour, be careful not to heighten its 
colour or exaggerate its extent. If the only informa- 
tion you possess is contained in a letter, it is best to give 
him the letter and leave him to draw his own conclu- 
sions. {Coxhcad v. Richards, 2 C. B. 5G9 ; 15 L. J. C. P. 
278 ; 10 Jur. 984 ; Rohshaiu v. Smth, 38 L. T. 423.) 
Do not speak with the aii' of knowing of your own 
knowledge every word you say to be the fact, when you 
are merely repeating gossip or hazarding a series of 
reckless assertions. If time allows, and means of inquiry 
exist, you should make some attempt to sift the charge, 
before you spread it. In short, confidential advice should 
be given seriously and conscientiously : it should be 
manifest that you do not take a pleasm^e in maligning 
the plaintiff, but are compelled to do so in the honest 
discharge of a painful duty. 

And, above all, the answer must be pertinent to the 
inquiry. If I am asked the plaintiff's name or address, 
I must not commence to disparage the plaintiff's credit, 
conduct, family or wares. In fact, the reply must be 
an answer to the question or reasonably induced 
thereby and not irrelevant information gratuitously 
volunteered. {Southam v. Allen, Sir T. Eaym. 231 ; 
Himtlejj V. Ward, 6 C. B. ^. S. 514.) It is for the jury 
in each case to determine whether what passed was or 
was not relevant to the inquiry, and whether or no the 
information was given confidentially. 

Illustrations. 

If a friend tells uie lie wants a good solicitor to act for him, and asks my 
opinion of Smith, I am justitied in telling him all I know for or against 
Smith. But if a stranger asked me in the train : " Is not that gentleman 
a solicitor?" 1 should not, it is submitted, he i)rivileged in reiilyiiig : "Yes, 
hut he ought to have been struck off the rolls long ago." 

If A. is about to have dealings with B., Ijut first comes to C. and confi- 
dentially asks him his opinion of J 5., C.'s answer is privileged. " Every one 



2o6 - QUALIFIED PRIVILEGE. 

is qviite at libertj- to state liis opinion '^ond fide of the respectability of a 
party thiis iiKj^iiired about." Per Lord Denman in 
Storeij V. Challands, 8 C. & P. 234. 
Plaintiff had been tenant to the defendant ; a wine-broker went to defen- 
dant to ask him plaintiff's present address. Defendant commenced to abuse 
the plaintiff. The broker said : " I don't come to enquire about his 
character, but only for his address; I have done business with him before." 
But the defendant continued to denounce the plaintiff as a swindler, adding 
liowever, " I speak in confidence." The broker thanked defendant for his 
remarks and declined in future to trust the plaintiff". Held, that it was 
rightly left to the jury to say if defendant spoke bond fide or maliciousl}". 
Picton V. Jachiian, 4 C. & P. 257. 
Southam v. Allen, Sir T. Raymond, 231. 
Watkins met the defendant in Brecon, and addressing him said, " I hear 
that you say the bank of Bromage and Snead at Monmouth has stopped. Is 
it true ] " Defendant answered, " Yes, it is. I was told so. It was so 
reported at Cricklewell, and nobody would take their bills, and I came to 
town in consequence of it myself." Held, that if the defendant understood 
Watkins to be asking for information by which to regulate his conduct, and 
spoke the words merely by way of honest advice, they were frimd facie 
privileged. 

Bromage v. Prosscr, 4 B. & Cr. 247 ; 1 C. & P. 475 ; 6 D. & R. 

296. 

The defendant was asked to sign a memorial, the object of which was to 

retain the plaintiff' as trustee of a charitj' from which office he was about to 

be removed. The defendant refused to sign, and on being pressed for his 

reasons, stated them explicitly. Held, a privileged communication. 

Coides V. Potts, 34 L. J. Q. B. 247 ; 11 Jur. N. S. 946 ; 13 ^Y. R. 
858. 
The plaintiff' had been a Major-General commanding a corps of irregular 
troops during the war in the Crimea. Complaint having been made of the 
insubordination of the troops, the corps commanded by the plaintiff' was 
placed imder the superior command of General Vivian. The plaintiff' then 
resigned his command, and General Vivian directed General Shirley to 
inquire and repoit on the state of the corps, and particularly referred him 
for information on the matter to the defendant, who was General Vivian's 
private secretary and civil commissioner. All communications made by the 
defendant to General Shirley touching the corps and the plaintiff's manage- 
ment of it are privileged, if the jury find that the defendant at the time 
honestly believed that he was acting within the scope of his duty in making 
them. 

Beatson v. Skene, 5 H. & N. 838 ; 29 L. J. Ex. 430 ; 6 Jur. N. S. 

780 ; 2 L. T. 378. 

Hopwood V. Thorn, 8 C. B. 293 ; 19 L. J. C. P. 94 ; U Jur. 

87. 

A., B., and C. are brother officers in the same regiment. A. meets B. and 

says, " I have learned that C. has been guilty of an atrocious oft'ence : I 

wish to consult you whether I should divulge it — whether I should speak 



CONFIDENTIAL COMMUNICA TIONS. 207 

of it to the commanding officer." Such remark and the discuKsiou that 
ensued woiUd be privileged, if bond fide. Per Pigot, C.B., in 

Bell V. Parke, 10 Ir. C. L. R. 284. [The decision in the case 
turned on the hmguage of the plea.] 
The plaintiff was a London merchant who liad had business relations with 
the London and Yorkshire Bank (Limited). The defendant, the manager 
of that bank, on being applied to by one Hudson for information about the 
plaintiff, showed Hudson an anonymous letter whirh the bank had received 
about the plaintiff', and which contained the libel in question. Held, that 
handing Hudson the letter in confidence was a privileged communication. 
Grove, J., in refusing a rule for a new trial made the following remarks : — 
" The defendant did not act as a volunteer, but was applied to for informa- 
tion. When applied to he did give such information as he possessed. He 
might have refused to give that information. He had no legal duty cast 
upon him to give any opinion. But he was entitled to give his opinion 
when asked, and il fortiori, as it seems to me, to show any letters he had 
received bearing on the subject. If one man shows another a letter, he 
leaves him to estimate what ^•alue attaches to it ; whereas any opinion he 
gives might be based on very insufficient grounds. It is better to state 
facts than to give an opinion. Everyone owes it as a duty to his fellow- 
men to state what he knows about a person, when inquiry is made ; other- 
wise no one would be able to discern honest men from dishonest men. It 
is highly desirable, therefore, that a privilege of this sort should be main- 
tained. An anonymous letter is usually a very despicable thing. But 
anonymous letters may be very important, not by reason of what they say, 
but because they lead to inquiry, which may substantiate what they liaA'e 
.said. It seems to me, therefore, that he was fully entitled to show this 
anonymous letter for what it was worth." 
Robshaw v. Smith, 28 L. T. 423. 



(h) Confidential communications not in amwer to a 
Ijremous inqiiir/j. 

In the cases just quoted stress is laid on tlie fact that 
the defendant did not vohmteer the information, but was 
expressly applied to for it. This is always no doubt a 
very material fact in the defendant's favour ; but it is 
never alone decisive. Many occasions are privileged in 
which no application is made to the defendant, but he 
himself takes the initiative ; while, on the other hand, 
as Ave have seen, many answers to inquiries will not 
necessarily be privileged, even if giA'en confidentially. 
The question in every case is this : — Were the circuni- 



2o8 QUALIFIED PRIVILEGE. 

stances such that an lionest man might reasonably 
supj)ose it his duty to act as the tk^fendant has done in 
this case ? And the circumstances may be such that it is 
clearly the duty of a good citizen to go at once to the 
person most concerned and tell him everything, without 
Avaiting for him to come and inquire. It may well be 
that he has no suspicions, and never would inquire into 
the matter unless Avarned. (See post, pp. 213-219.) 

But iu cases Avhere neither life nor property is in immi- 
nent and obvious peril, there the circumstance that the 
defendant was applied to for the information, and did 
not volunteer it, Avill materially affect the issue. Where 
the matter is not of great or immediate importance, 
interference on my part may be considered officious and 
meddlesome; although, under the same circumstances, 
every one would at once admit that it would have been 
my duty to give all the information iu my power, had I 
been applied to for it. An answer to a confidential 
inquiry may be privileged where the same information if 
volunteered would be actionable. Thus I am not justi- 
fied in standing at the door of a tradesman's shop and 
voluntaril}^ defaming his character to his intending cus- 
tomers. But if an intending customer comes to me and 
inquires as to the respectability or credit of that trades- 
man, it is my duty to tell him all I know. (Store// v. 
Chaltands, 8 C. & P. 234.) 

In cases then in which there can be a doubt as to the 
defendant's duty to speak, the fact that he was applied 
to for the information will tell stronglj' in his favour. 
In cases where his duty to speak was clear without that, 
the fact that he was applied to is immaterial. 

Ill uat rat Ions. 

Both the Mar(|uis of Anglesey and his agent tohl the defendant, the 
tenant of Haywood Park Farm, to inform them if he saw or heard anything 



CONFIDENTIAL RELATION. 209 

wrong respecting the game. Tlie defendant heard that the gamekeeper was 
selling the game, and believing the fact to be so, wrote and informed the 
Marquis. Held, that the letter was privileged ; but Parke, J., intimated 
that if the defendant had not been previously directed to communicate 
anything he thought going wrong, the letter would have been unauthorised 
and libellous. 

Cockaijne v. Hodgkisson, 5 C. & P. 543. 
See King v. Watts, 8 C. & P. 615. 

If a master, hearing that a discharged servant is seeking to enter !M.'s 
service, writes to M. of his own accord to give the servant a bad character, 
and thus forestalls any inquiry by M. ; it will at all events require stronger 
evidence to prove that he acted hond fide than it would had he waited for 
M. to write and enquire. 

Pattison v. Jones, 8 B. & C. 578 ; 3 M. & R. 101. 

Horsford was about to deal with the plaintiff, when he met the defendant 
who said at once, without his opinion being asked at all, " If you have 
anything to do with Storey, you will live to repent it ; he is a most un- 
principled man," &c. Lord Denman directed a verdict for the plaintiff, 
l)eeause the defendant began by making the statement, without waiting to 
be asked. 

Storey v. Challands, 8 C. & P. 234. 

Nash selected plaintiff to be his attorney in an action. Defendant, appa- 
rently a total stranger, wrote to Nash to deprecate his so employing the 
plaintiff. This was held to be clearly not a confidential communication. 
Damages, Is, 

Godson V. Home, 1 B. & B. 7 ; 3 Moore, 223. 

At the hearing of a County Court case, Nettlefold v. Fulcher, Fulcher's 
solicitor commented severely on the conduct of the plaintiff, Nettlefold's 
debt collector. Not content with that, Fulcher's solicitor sent a full report 
of the case to the Marijlebone Gazette, including his remarks on the plaintiff. 
The jury found that this report was substantially fair and accurate, but that 
it was sent to the newspaper "with a certain amount of malice." The Court 
upheld this finding, laying especial stress upon the fact that the defendant 
was a volunteer, and not an ordinary reporter for that paper. 

Steve7is V. Samjjson, 5 Ex. D. 53 ; 49 L. J. Q. B. 120 ; 28 W. R. 
87 : 41 L. T. 782. 



(c) Communications made in discharge of a duty arising 
from a confidential relationship existing hetiveen the 
'parties. 

In what cases then will a defendant be privileged in 
going of his own accord to the person concerned, and 
giving him information which he has not asked for? 
This is often a difficult question to answer. But in one 



2IO QUALIFIED PRIVILEGE. 

class of cases it is clear that it is not only excnsable, but 
that it is imperative on the defendant so to do ; and that 
is where there exists between the parties such a confi- 
dential relation as to throw on the defendant the duty of 
protecting the interests of the person concerned. 

Thus it is clearly the duty of my steward, bailiff, 
foreman, or housekeeper, to whom I have entrusted the 
management of my lands, business, or house, to come 
and tell me if they think anything is going wrong, and 
not to wait till my own suspicions are aroused, and I 
\ myself begin asking questions. So my family solicitor 
7 may voluntarily write and inform me of any thing whicli 
;/ he thinks it is to my advantage to know, without wait- 
'■ ing for me to come down to his office and enquii*e. But 
it would be dangerous for another solicitor, whom I had 
never em]3lo3^ed, to volunteer the same information ; for 
till I retain him in the matter, there is no confidential 
relation existing between us. So a father, guardian, or 
I an intimate friend may warn a young man against asso- 
i dating with a particular individual ; or may warn a lady 
not to marry a particular suitor; though in the same 
circumstances it might be considered ofiicious and med- 
dlesome, if a mere stranger gave such a warning. So if 
the defendant is in the army or in a government office, 
it would be his duty to inform his official superiors of 
anj" serious misconduct on the part of his subordinates ; 
for the defendant is in some degree answerable for the 
faults of those immediately under his control. But it 
does not follow that, if A. and B. are officers or clerks of 
equal ranli and standing, it is the duty of A. to tell tales 
of B., except in self-defence ; for A.'s superiors expect 
him to do his otvti work merely and have not invested 
him with any authority or control over B. (See Bell v. 
Farle, 10 Ir. C. L. E. 284 ; 11 Ir. C. L. E. 413.) 
A confidential relationship then clearly exists where the 



CONFIDENTIAL RELATION. 2u 

j^arties are principal and agent, solicitor and client, 
guardian and ward, partners, or even intimate friends : 
in short whereyer any trust or confidence is reposed by 
the one in the other. Or, changing the point of view, 
we may say that it will be the duty of A. to volunteer 
information to B., whenever B. could justly reproach A. 
for his silence if he did not volunteer such information. 

Merely labelling a letter " Private and confidential^^'' 
or merely stating " I speak in confidence ^^^ will not make 
a communication confidential in the legal sense of that 
term, if there be in fact no relationship between the parties 
which the law deems confidential. (Picton v. Jachnan^ 
4 C. & P. 257.) 

Illustrations. 

My regular solicitor may unasked give me any information concerning 
third peTBtrnTof which he thinks it to mj-Jaterest that I should be informed, 
even although he is not at the moment conducting any legal proceedings 
for me. 

Davis V. Reeves, 5 Ir. C. L. E. 79. 
A solicitor who is conducting a case for a minor may inform his next 
friend of the minor's misconduct. 

Wright v. Woodgate, 2 C. M. & R. 573; 1 Tyr. & G. 12 ; 1 Gale, 
329. 
Rumours being in circulation prejudicial to the character of the plaintiff, 
a dissenting minister, he courted inipiiry, and appointed A. to sift the 
matter thoroughly. It was agreed that the defendant should represent the 
malcontent portion of the congregation, and state the case against the 
plaintiff to A. A confidential relationship being thus established between 
the defendant and A., all that took place between them, whether by word 
of mouth or in writing, so long as the enquiry lasted, and relative thereto, 
was held to be privileged. 

Iloprood V. Tlwrn, 8 C. B. 293 ; 19 L. J. C. P. 94 ; 14 Jur. 87. 
A report l)y tlie Comptroller of the Navy to the Board of Admiralty upon 
the plans and proposals of a naval architect is clearly privileged. Per 
Grove, .J., in 

Henu'ood v. Harrison, L. R. 7 C. P. 600 ; 41 L. J. C. P. 206 ; 20 
W. R. 1000 ; 26 L. T. 938. 
A timekeeper employed on public Avorks, on behalf of a public depart- 
ment, wTote a letter to the secretary of the department, imputing fraud to 
the contractor. Blackburn, J., directed the jury that if they thought the 
letter was -wTitten in good faith and in the discharge of the defendant's 
duty to his employers, it was privileged, although written to the wrong person. 

Hcarll V. Dixon, 4 F. & F. 250. 

p 2 



212 QUALIFIED PRIVILEGE. 

A relation or intimate friend may confidentially advise a lady not to 
marry a particular suitor, and assign reasons, provided lie really believes in 
the truth of the statements he makes. 

Todd V. Ilaxvkws, 2 M. & Rob. 20 ; 8 C. & P. S88. 
The defendant and Tinmonth were joint owners of The Rohinson, and 
engaged the plaintift' as master ; in April, 1843, defendant purchased Tin- 
mouth's share ; in August, 1843, defendant wrote a business letter to Tin- 
mouth, claiming a return of £150, and incidentally libelled the plaintiff. 
Held, a privileged communication, as the defendant and Tinmouth were 
still in confidential relationship. 

IFilson V. Eobinson, 7 Q. B. 68 ; 14 L. J. Q. B. 196 ; 9 Jur. 
726. 
The defendant, a linendraper, dismissed his apprentice without sufficient 
legal excuse : he wrote a letter to her parents, informing them that the girl 
would l^e sent home, and giving his reasons for her dismissal. Cockburn, 
C.J., held tliis letter privileged ; as there was clearly a confidential relation- 
ship between the girl's master and her parents. 

James v. Jolly, Bristol Summer Assizes, 1879, ex relatione mea. 
See Fowler and ivife v. Homer, 3 Camp. 294. 
The officers and men of the garrison of St. Helena gave an entertainment 
at the theatre, at wliich. considerable noise and disturbance took place. The 
commanding officer was informed that this was caused by the plaintiff, who 
was said to have been drunk. The plaintift' was an assistant master in tlie 
Government School. The commanding officer rej^orted the circumstances 
to the colonial secretary of the island, and the plaintift' was in consecpience 
suspended from his appointment. Verdict for the plaintift' disapproved and 
set aside, and judgment arrested. 

Stace V. Griffith, L. R. 2 P. C. 420 ; 6 Moore, P. C. C. X. S. 18 ; 

20 L. T. 197. 
Sutton V. Plumridge, 16 L. T. 741. 
It is the duty of an under-master in a College School to inform the head- 
master that reports have been for some time in circulation imputing habits 
of drunkenness to the second-master. 

Humev. Marshall (Cockbum, C.J.), Times of Nov. 26, 1877. 
But where, after an election, the agent of the defeated candidate wrote a 
letter to the agent of the successful candidate, asserting that the plaintift" 
and another (both members of the successful candidate's committee) had 
bribed a particular voter, the letter was held not to be privileged, as there 
was no confidential relation existing between the two agents. 

Dickeson v. 'Hilliard and another, L. R. 9 Exch. 79; 43 L. J. Ex, 
37 ; 22 W. R. 372 ; 30 L. T. 196. 
A circular letter sent by the secretary to the members of a society for 
the protection of trade against sharpers and swindlers, is not a privileged 
communication. 

Getting v. Foss, 3 C. & P. 160. 

See Goldstein v. Foss, 2 C. & P. 252 ; 6 B. & C. 154 ; 4 Bing. 

489 ; 2 Y. & J. 146 ; 4 D. & R. 197 ; 1 M. & P. 402. 
Humphreys v. Miller, 4 C. & P. 7. 



INFORMATION VOLUNTEERED. 213 

{d') Information volunteered tvhen there is no confidential 
Telationship existing between the jyarties. 

Where neitlier the defendant himself, nor any one 
with whom he has confidential relations, is interested in 
the snbject matter of the commnnication, it is very dif- 
ficult to define what circnmstances will be sufficient to 
impose on him the duty of volunteering information to 
the prejudice of the plaintiff. There is no rule of law 
on the point. It is a question rather of moral or social 
ethics. Unless the judge is clearly of opinion that there 
are no circumstances to raise a suggestion of privilege, 
he will in OA^ery such case leave it to the jury to deter- 
mine whether the defendant acted hona fide in the 
execution of what he honestly believed to be his duty. 
The jury must not ask themselves merely — " Should we 
have acted as the defendant has done in such cii'cum- 
stances?" for different people act differently in similar 
perplexities. Moreover the matter has been thoroughly 
investigated before it comes before the jury, and what 
to the defendant at the time seemed matter of serious 
susj)icion has all been explained away in court. The 
jiuy must place themselves in the position of the de- 
fendant at the time these suspicious circumstances were 
brought to liis knowledge, when first the question arose 
in his mind : — " Ought I not to inform A. of these 
matters which so nearly concern him ? " It may well be 
that another man would have said, "It is no concern of 
mine," and would do nothing (Avhich is always the safer 
cou]'se). But if the defendant honestly felt that he 
could not conscientiously allow A. to continue in secure 
ignorance, that he must communicate to him the rumour, 
he had heard, and if he had reasonable grounds for so 
feeling, that is sufficient. It is not necessary that the 
reports which reach the defendant should be true, or 



214 QUALIFIED PRIVILEGE. 

that he shouhl thoroughly investigate them. Hearsay 
i^jufficdfiiLLl'easonable and probable cause in the ab sence 
"7 K mali ce {^Maitland v. Bramivell^ 2 F. & F. 623; 
Coxhead v. Richards, 2 C. B. 5G9 ; 15 L. J. C. P. 278 ; 
Lister V. Pcrnjman, L. E. 4 H. L. 521 ; 39 L. J. Ex. 
177; 23L. T. 2G9); unless the defendant ought for any 
reason to have known that his informant was unreliable, 
and his story undeserving of belief. 

The defendant is entitled to judgment if the jiuy find 
that he reasonably acted under an honest sense of duty, 
desiring to serve the person most concerned, and not 
from any self-seeking motive. But there must be some 
cii'cumstances proved before them, showing that such a 
sense of duty was reasonably j)Ossible. It is not sufficient 
for the defendant merely to swear : "I acted under a 
sense of duty." The defendant is not to be punished 
for merely being over-conscientious; but on the other 
hand it is clear law that a man is not justified in repeat- 
ing information he has received prejudicial to the plain- 
tiff, merely because he sincerely believes it to be true. 
{Botterill V. Whitehead, 41 L. T. 588.) 

It might be argued that in using the words " reasonably " 
and "if he had reasonable grounds for so feeling," I am running 
counter to Clark v. Molyneux, 3 Q. B. D. 237 ; 47 L. J. Q. B. 
230 ; 26 W. B. 104 ; 36 L. T. 466 ; 37 L. T. 694. But I think 
that decision is confined to cases of clear privilege, where the 
only question is as to evidence of express malice. Here we are 
dealing with the previous question, privilege or no privilege. 

The law on the j)oint cannot be better expressed than 
in the following passage: — "Where a person is so 
situated that it becomes right in the interests of society 
that he should tell to a thii'd person certain facts, then 
if he bo7id fide and without malice does tell them it is a 
privileged communication." (Fcr Blackburn, J., in 



INFORMATION VOLUNTEERED. 215 

Davies v. Snead, L. E. 5 Q. B. 611 ; 39 L. J. Q. B. 202 ; 
23 L. T. 609.) The only clifRciilty is in any given case 
to determine whether it had or had not become right in 
the interests of society that the defendant should act as 
he did. 

In some cases the judge decides this point without 
the help of ^^ jury by ruling that no prima facie case 
of j)rivilege has at all been established. And undoubt- 
edly it is the province of the judge to decide whether a 
communication is privileged or not, when the facts are 
undisputed. But it is submitted that in cases where the 
defendant alleges that he acted under an honest, though 
mistaken, sense of duty, the judge should take the 
opinion of the jury on the question of hona fides, unless 
he feels certain that no other reasonable man, except the 
defendant, would have felt it his duty to act as the 
defendant did in similar circumstances. 



In Bennett v. Deacon, 2 C. B. 628 ; 15 L. J. C. P. 289, the 
Court of Common Pleas were equally divided on the question 
Avliethcr the judge was right in ruling that the communication 
could not be privileged, and leaving no question to the jury as 
to the defendant's hona fides. In Coxhead v. Richards, 2 C. B. 
509 ; 15 L. J. C. P. 278 ; 10 Jur. 984, the judge had left the 
question to the jury, and the same Court was equally divided 
as to whether he was right in so doing. In each case, therefore, 
the rule dropped, and the verdict stood, and, as in the former 
case the verdict had necessarily been for the plaintiff, owing to 
the judge's ruling, and in the latter case it was for the defen- 
dant, the law now stands in this somewhat contradictory state : — 
A man may not give a tradesman a bond fide caution not to trust 
the plaintiff, though the facts stated be within defendant's own 
knowledge ; he must wait till the tradesman applies to him for 
his advice; but, on the other hand, a man may inform a ship- 
owner of his captain's misconduct, though he does not know 
it of his own knowledge but only tlirough others. The very 
similar case of Harwood v. Green, 3 C. & P. 14>1, post, p. 288, 



2i6 (2UALIFIED PRIVILEGE. 

was not cited in the argument of Coxhead v. Richards ; in 
that case it was decided that a letter written to Lloyd's by a 
lieutenant in the navy as to the misconduct of the captain of a 
transport ship on board which the lieutenant had been super- 
intendent was not a privileged communication. So too it is 
difficult to distinguish Brooks v. Blanshard, 1 Cr. & Mees. 779 ; 
3 Tyrw. 844; from Harris v. T/wmj^son, 13 C. B. 333. In both 
cases the communication appears to have been volunteered. In 
Harnett v. Vise and wife, 5 Ex. D. 307 ; 29 W. R. 7, the judge 
and the jury took opposite views of the defendants' conduct. 

If such differences of opinion appear in the reported decisions 
of the Law Courts, how much greater must be the perplexity 
of a defendant uneducated in casuistry who suddenly finds 
himself called upon to solve a doubtful problem in social 
morality. 

It appears to be clear that if the defendant reasonably 
supposes that human life would be seriously imperilled 
by his remaining silent he may volunteer information to 
those thus endangered, or to their master, though he be 
not himself personally concerned (see 2^^'' Cress well, J., 
2 C. B. G05). So if the money or goods of the person 
to whom he speaks would be in great and obvious 
danger of being stolen or destroyed. So too it appears 
that the defendant may, without being applied to for 
the information, acquaint a master with the misconduct 
of his servants, if instances thereof have come under the 
especial notice of the defendant and have been concealed 
from the master's eye. But in most other cases the 
defendant runs a great risk in volunteering statements 
which afterwards turn out to be inaccurate, unless 
indeed he is himself personally interested in the matter, 
or compelled to interfere by llie fiduciary relationship in 
which he stands to some person concerned. Although 
the defendant may feel sure that if he were in his 
neighbour's place, he should be most grateful for the 
information conveyed, still he must recollect that it may 



DUTY TO SPEAK. 217 

eventually turn out, that in endeavouring to avert a 
fancied injury to that neighboui", he has really inflicted 
an undoubted and undeserved injury on the plaintiff. 



Illustrations. 

A. and B. are tenants to the same landlord with similar clauses in their 
respective leases. ^. has reason to believe t^iat i?. is breaking his cove- 
nants, committing waste, violating the rotation of crops, &c. The landlord 
is away abroad. It is submitted on the authority of Cockayne v. Hodghis- 
son, 5 C. & P. 543, ante, p. 208, that it is not the duty of A. to write and 
inform the landlord of his suspicions, and that therefore such a letter 
would not be privileged ; unless the landlord had in some way set A. in 
authority over B. 

A housemaid thinks the cook is robbing their master. It is not her duty 
to speak at once on bare suspicion merely ; but as soon as she sees some- 
thing which reasonably appears to her inconsistent with the cook's inno- 
cence, she will be privileged, it is submitted, in giving information thereof 
to her master. 

Communications confidentially made to a master as to the conduct of his 
servants, by one who has had an opportunity of noticing certain malprac- 
tices on their part, are privileged. 

Cleaver v. Sarraude, 1 Camp. 268. 
Kine v. Se^vell, 3 M. & W. 297. 

Amann v. Damm, 8 C. B. N. S. 597 ; 29 L. J. C. P. 313 ; 7 
Jur. N. S. 47 ; 8 W. E. 470. 
The occu})ier of a house may complain to the landlord of the workmen 
he has sent to rejiair the house. 

Toofjood V. Spyring, 1 C. M. & R. 181 ; 4 Tyrw. 582. 
If a report be current in a parish as to the disgraceful conduct of the 
incumbent, brmging scandal on the church, a good churchman may inform 
the Bisliop of the diocese thereof, although he does not reside in the district 
and is not personally interested. 

James v. Boston, 2 C. & K. 4. 
A letter written by a private indivitlual to the chief secretary of the 
Post-Master General complaining of the misconduct of an official under the 
authority of the Post-Master General, is privileged, if made bond fide and 
without malice, even thougli some of the charges made in the letter may 
not be true, and though the defendant stood in no relation, past or present, 
either to the plaintiff or to the Post Office authorities. 
Blake v. Filfold, 1 Moo. & Rob. 198. 
Woodward v. Lander, 6 C. & P. 548. 
The first mate of a merchant ship, wrote a letter to the defendant, an old 
and intimate friend, stating that he was placed in a very awkward position 
owing to the drunken habits, &c., of the captain, and saying : — " How shall 



21 8 (QUALIFIED PRIVILEGE. 

I act ? It is my duty to write to ]\f r. Ward (the owner of the ship), Ijut 
my doing so would ruin " the captain and his wife and family. The defen- 
dant, after much deliheration and consultation with other nautical friends, 
thought it his duty to show the letter to Ward, who thereupon dismissed 
the captain. The defendant knew nothing of the matter except from the 
mate's letter. The Court of C. P. was equally divided on the question 
whether so showing the letter was privileged ; and therefore the verdict 
for the defendant stood. 

GoxluaA V. Richards, 2 C. B. 569 ; 15 L. J. C. P. 278 ; 10 Jur. 

984. Approved by Willes, J., in 
Amann v. Damm, 8 C. B. N. S. 597 ; 29 L. J. C. P. 313. 
And see Harwoocl v. Green, 3 C. & P. 141 ; 'post, p. 288. 
Defendant met Clark in the road, and asked him if he had sold his 
timber yet. Clark replied that Bennett (plaintiff) was going to have it. 
Defendant asked if he was going to pay ready-money for it, and being 
answered in the negative, said, " Then you'll lose your timber ; for 
Bennett owes me about £25, and I am going to arrest him next week 
for my money, and your timber will help to pay my debt." Clark con- 
sequently declined to sell the timber to the plaintiff. Plaintiff really 
did owe defendant about £23. Coltman, J., directed the jury that the 
caution was altogether unprivileged because volunteered : and they therefore 
found a verdict for the plaintiff, damages 40s. The Court of C. P. were 
equally divided on the c^uestion whether the judge was right in his 
direction, and therefore the verdict- for the plaintiff stood. 

Bennett v. Deacon, 2 C. B. 628 ; 15 L. J. C. P. 289. 
See King v. WaUs, 8 C. & P. 615. 
A. and B. were shareholders in the same railway company. B. was 
also a Eiver Commissioner. The plaintiff had been engineer to the rail- 
way company and was seeking to be elected engineer to the River Com- 
missioners. Shortly before the election, A. voluntarily wrote to B. that 
the plaintiff's mismanagement or ignorance had .cost the railway company 
several thousand pounds. The plaintiff lost the appointment in conse- 
quence. Held not a privileged communication. 

Brooks V. Blanshard, 1 Cr. & Mees. 779 ; 3 Tyrw. 844. 
The defendant was a director of two companies ; of one of which the 
plaintiff was secretary, of the other auditor. The plaintiff was dismissed 
from his post as secretary of the first company for alleged misconduct. 
Thereupon the defendant, at the next meeting of the board of the second 
company, informed his co-directors of this fact, and proposed that he 
should also be dismissed from his post of auditor of the second company. 
Held a privileged communication. 

Harris v. Thompson, 13 C. B. 333. 
Dawes told the defendant that he intended to emjiloy the plaintiff as 
surgeon and accoucheur at his wife's ai^proaching confine oient ; the de- 
fendant thereupon advised him not to do so, on account of the plaintiff's 
alleged immorality. Martin, B., thought this was a ^jrivileged communi- 
cation, though it was volunteered. 

Dixon v. Smith, 29 L. J. Ex. 125 ; 5 H. & N. 450. 



INFORMATION VOLUATEERED. 219 

The defendant, a parisliioner, mentioned to her rector a report, widely- 
current in the parish, that the rector and his solicitor were grossly mis- 
managing a trust estate, and defrauding the widow and orphans, &c. 
The solicitor brought an action for the slander. The jury found that 
she did so in the honest belief that it was a benefit to the rector to 
infomi him of the report in order that he might clear his character. 
The Court held that the statement was clearly privileged so far as the 
rector was concerned, and that as the statement was not divisible it 
must also be privileged with regard to the plaintiff. 

Davies v. Snead, L. E. 5 Q. B. 611 ; 39 L. J. Q. B. 202 ; 23 L. 
T. 609. 

Information given to a vicar absent on the continent as to rumours 
affecting the moral character of the curate he has left in charge is privi- 
leged : so is similar information given verbally to the absent vicar's 
solicitor, with a view to his informing the vicar, should he think it 
right to do so : so is similar information given to a neighbouring vicar 
who has asked the curate in charge to preach for him. 

Clarh V. Molynmx, 3 Q. B. D. 237 ; 47 L. J. Q. B. 230 ; 26 W. 
E. 104 ; 36 L. T. 466 ; 37 L. T. 694 ; 14 Cox, C. C. 10. 

The plaintiff, an architect, had been employed by a certain committee to 
superintend and carry out the restoration of Skirlaugh Church ; there- 
upon the defendant, ^\ ho was a clergyman residing in the county^, but who 
had no manner of interest in the question of the employment of the 
plaintiff to execute the work, wrote a letter to a member of the committee 
saying, " I see that the restoration of Skirlaugh Church has fallen into the 
hands of an architect who is a Wesleyan and can have no experience in 
church work. Can you not do something to avert the irreparable loss 
which must be caused if any of the masonry of this ancient gem of art be 
ignorantly tampered with ? " The letter was clearly a libel on the plaintiff 
in the way of his profession or calling. Bramwell, L.J., thought it was 
privileged, because the restoration was a matter of public interest, and one 
in which a neighbouring clergyman would be especially interested ; but a 
special jury found that there was evidence of malice in the unfair expres- 
sions employed and gave the plaintiffs £50 damages. But Kelly, C.B., on 
a motion for a new trial, declared that he was '• at a loss to see what 
privilege the defendant possessed, under the circumstances of the case, to 
interfere between the committee and the plaintift's in respect of the con- 
tract between them ; the defendant being neither the patron, nor the 
minister of the church, nor a member of the committee appointed to 
effect its restoration, nor even a parishioner." 

[It did not appear that the defendant was even a subscriber to the 
restoration fund.] 

Botterill and another v. Whytdiead , 41 L. T. 588. 



220 QUALIFIED PRIVILEGE. 

(iii.) Information given to any public officer imputing * 
crime or misconduct to others. 

It is a duty whicli every one owes to society and to 

the State to assist in the investigation of any alleged 

misconduct, and to promote tlie detection of any crime. 

And tliis duty does not arise merely when confidential 

inquiries are made. If facts come under my knowledge 

which lead me reasonably to conclude that a crime has 

been, or is about to be, conunitted, it is my duty at once 

to give information to the police. " For the sake of 

public justice, charges and communications which would 

otherAvise be slanderous, are protected if lomX fide made 

in the prosecution of an inquiry into a suspected crime." 

{Per Coleridge, J., in Padmore v. Latvrence, 11 A. & E. 

382. See Johnson v. Bvans, 3 Esp. 32.) But such 

charges must be made in the honest desii-e to promote 

the ends of justice, and not "v\dth any spiteful or malicious 

feeling against the person accused, nor with the pui-pose 

of obtaining any indirect advantage to the accuser. "Noy 

should serious accusations be made recklessly or wantonly ; 

they must always be warranted by some circumstances 

reasonably arousing suspicion. And they should not be 

made before more persons, nor in stronger language, 

than necessary. 

Illustrations. 

Meiiselsent his servant, the plaintiff, to the defendant's shop on business ; 
while there, the plaintiff had occasion to go into an inner room. Shortly 
after he left, a box was missed from that inner room. No one else had been 
in the room except the plaintiff. The defendant thereupon went round to 
Mr. Mensel's, and calling him aside into a private room, told him what had 
happened, adding that the plaintiff must have taken the box. Later on, 
the plaintiff" came to the defendant's house, and the defendant repeated the 
accusation to him ; but, an English girl being present, defendant was 
careful to speak in German. Both communications were held pri\'ileged, if 
made without actual malice and in the bond fide belief of their truth. 

Amann v. Damm, 8 C. B. N. S. 597 ; 29 L. .T. C. P. 1313 ; T Jur. 
N. S. 47 ; 8 W. E. 470. 



CHARGE OF FELONY. 221 

Defendant accused the plaintiff, in the presence of a third person, of 
stealing his wife's brooch ; pUxintiff wished to be searched ; defendant 
repeated the accusation to two women, who searched the plaintiff and found 
nothing. Subsequently it was discovered that defendant's wife had left 
the brooch at a friend's house. Held, that the mere publication to the two 
women did not destroy the privilege attaching to charges, if made hond 
fide ; but that all the circumstances should have been left to the jury who 
should determine whether or no the charge was made recklessly and un- 
warrantably, and repeated before more persons than necessary. 

Padmore v. Lawrence, 11 A. & E. 380 ; 4 Jur. 458 ; 3 P. & D. 
209. 

Fowler and Wife v. Homer, 3 Camp. 294. 
Plaintiff assaulted the defendant on the highway ; defendant, meeting a 
constable, requested him to take charge of the plaintiff, and the constai)le 
refusing to arrest the plaintiff unless the defendant would charge him with 
felony, the defendant did so ; held, on demurrer to the defendant's plea 
setting up these circumstances, that they did not render the charge of 
felony a privileged piiblication. 

Smith V. HodgesJcins, Cro. Car. 276. 
Plaintiff was defendant's shopman in Plymouth till Xov. 5th, 1834, 
when he left and went to London, receiving from the plaintiff a good 
character for steadiness, honesty and industry. Early in December defen- 
dant found one of his female servants in possession of some of his goods. 
When charged with stealing them, she said that the plaintiff gave them to 
her. Thereupon the defendant, though he knew the girl was of bad 
character, went to the plaintiff's relations in Plymouth and charged him 
with felony, and eventually induced them to give him fifty pounds to say 
no more about the matter. Held that the charge of felony was not made 
hond fide, with a just intention to promote investigation or prosecution, but 
with a view to a compromise, and was altogether unprivileged ; and that 
no question as to malice in fact should have been left to the jury. 

Hoover v. Truscott, 2 Bing. N. C. 457 ; 2 Scott, 672. 



So, too, it is the duty of all who witness any miscon- 
duct on the part of a magistrate or any public officer to 
bring such misconduct to the notice of those whose duty 
it is to inquire into and punish it ; and, therefore, all 
petitions and memorials complaining of such misconduct, 
if prepared bond fide and forwarded to the proper autho- 
rities, are privileged. And it is not necessary that the 
informant or memorialist should be in any way person- 
ally aggrieved or injured: for all i^ersons have an interest 
in the pure administration of justice and the efficiency of 



222 QUALIFIED PRIVILEGE. 

our public offices iu all departments of the State. So 
with ecclesiastical matters ; all good churelimen are con- 
cerned to prevent any scandal attaching to the Church. 
If, however, the informant be the person immediately 
affected by the misconduct complained of, he can claim 
privilege also on the ground that he is acting in self- 
defence. (See the next class of cases, p. 225.) Every 
communication is privileged which is made " lona fide 
with a view to obtain redress for some injiuy received, 
or to prevent or punish some public abuse. . . . This 
privilege, hoAvever, must not be abused; for if such a 
communication be made maliciously and without pro- 
bable cause, the pretence under which it is made, instead 
of furnishing a defence, will aggravate the case of the 
defendant." {Per Best, J., in Fairman v. Ives., 5 B. & 
Aid. 647, 8.) And a defendant Avill be taken to have 
acted maliciously, if he eagerly seizes on some slight and 
frivolous matter, and without any inquiry into the 
merits, "without even satisfying himself that the account 
of the matter that has reached him is correct, hastily 
concludes that a great public scandal has been brought 
to light Avhich calls for the immediate intervention of the 
CroAvn. 

Illustrations. 

A memorial to the Home Secretary or to the Lord Chancellor, complain- 
ing of misconduct on the part of a county magistrate and praying for his 
removal from the commission of the peace, is privileged. 

Harrison v. Bush, 5 E. & B. 344 ; 25 L. J. Q. B. 25, 99 ; 1 Jar. 

N. S. 846 ; 2 Jur. N. S. 90. 

So is a petition to the House of Commons charging the plaintiff with 

oppression and extortion in his office of Vicar-General to the Bishop of 

Lincoln, although the petition was printed, and copies distributed amongst 

the members. 

Lake v. King, 1 Lev. 240 ; 1 Saund. 131 ; Sid. 414 ; 1 Mod. 58. 

The defendant deemed it his duty as a churchman to write to the 

Bishop of London Informing him that a report was current in the parish 

of Bethnal Green that a stand-up fight had occurred in the schoolroom 

of St. James the Great between the plaintiff, the incumbent, and the 



CHARGES AGAINST PUBLIC OFFICIALS. 223 

schoolmaster, during school hours. The letter was held privileged under 
the Church Discipline Act, 3 & 4 Vict. c. 86, s. 3 ; although the defen- 
dant did not live in the district of which the plaintiff was incumbent 
but in an adjoining district of the same parish. 

James v. Boston, 2 C. & K. 4. 
A letter wi-itteu to the Postmaster-General, or to the Secretary to the 
General Post-Office, complaining of misconduct in a postmaster, is not a 
libel, if it was written as a bond fide complaint, to obtain redress for a 
grievance that the party really believed he had suffered ; and particular 
exj^ressions are not to be too strictly scrutinized, if the intention of the 
defendant was good. 

Woodward v. Lander, 6 C. & P. 548. 

Blake v. Pilfold, 1 Moo. & Rob. 198. 

But in seeking redress, the defendant must be careful 
to apply to some person who hjis jurisdiction to enter- 
tain the complaint, or power to redress the grievance. 
Statements made to some stranger who has nothing to 
do with the matter cannot be privileged. But still if 
the defendant applies to the VTong person, through some 
natural and honest mistake as to the respective functions 
of various state officials, such slight and unintentional 
error will not take the case out of the privilege. [Scm^ll 
V. Dixon, 4 F. & r. 250.) If however he recklessly 
makes statements to some one whom he ought to have 
known was altogether unconcerned with the matter, the 
privilege is lost. The person whose aid is invoked must 
have some jurisdiction, direct or indirect, to redi-ess 
the grievance or some duty or interest in connection 
therewith. 

So too where the informant is himself the person 
aggrieved, he should be very careful not to be led away 
by his just indignation into misstating facts, or em- 
ploying language which is clearly too violent for the 
occasion. 

Illustrations. 

" A petition to the king upon matters in which the Crown cannot 
directly interfere," is privileged. 

Per Best, J., 5 B. & Aid. G48. 



224 QUALIFIED PRIVILEGE. 

An elector of Frome petitioned the Home Secretary, stating that the 
plaintiff, a magistrate of the borough, had made speeches inciting to a 
breach of the peace, and praying an inijuiry and that the Home Secretary 
should advise Her Majesty to remove the plaintiff' from the commission of 
the peace,— such petition was held to be privileged, although it should 
more properly have been addressed to the Lord Chancellor. 

Harrison v. Bush, 5 E. & B. 344 ; 25 L. J. Q. B. 25, 99 ; 1 Jur. 
N. S. 846 ; 2 Jur. N. S. 90. 

Scarll v. Dixon, 4 F. & F. 250, ante, p. 211. 
The plaintiff was about to be sworn in as a paid constalde, by the justices, 
when the defendant, a parishioner, made a statement against the plaintift''s 
character in the hearing of several by-standers. Held that even if such 
statement ought rather to have been made to the vestry, who drew up the 
list of constables whom the justices were to swear in, still it was privileged, 
if made bond fide in furtherance of the ends of justice. 

Kershaw v. Bailey, 1 Ex. 743 ; 17 L. J. Ex. 129. 
A letter to the Secretary at War, with the intent to prevail on him to 
exert his authority to compel the plaintiff' (an officer in the army) to pay a 
debt due from him to defendant, was held pri^^leged, although the Secre- 
tary at "War had no direct power or authority to order the plaintiff' to pay 
his debt. " It was an application," says Best, J., " for the redress of a 
grievance, made to one of the king's ministers, who, as the defendant 
honestly thought, had authority to afford him redress." 

Fairman v. Ives, 5 B. & Aid. 642 ; 1 Chit. 85 ; ID. & R. 252. 
But where the defendant wi'ote a letter to the Home Secretary com- 
plaining of the conduct of the plaintiff", a solicitor, as clerk to the borough 
magistrates, this was held not to be privileged, because Sir Jamt-s Graham 
had no power or jurisdiction whatever over the plaintiff". There was 
moreover evidence of malice. 

Blagg v. Sfurt, 10 Q. B. 899 ; 16 L. J. Q. B. 39 ; 8 L. T. (Old 
S.), 135 ; 11 Jur. 101. 
Tlie plaintiff was a teacher in a district school ; the inhabitants of the 
district prepared a memorial charging the plaintiff with drunkenness and 
immorality, which they sent to the local superintendent of Schools. It 
oufi-ht strictly to have been sent to the trustees of that particular school 
in the first instance, and such trustees would then, if they thought fit, 
in due course forward it to the local superintendent for liiin to take 
action upon it. Held that the publication was still primd facie privi- 
leged, although by a mistake easily made, it had been sent to the wrong 
quarter in the first instance. 

Mclntijre v. McBean, 13 Up. Canada Q. B. Rep. 534. 



STATEMENTS IN SELF-DEFENCE. 225 

(B.) Communications made in self-defence. 

(iv.) Statements neccssaru to protect defendants private 
interests. 

The duty which compels the defendant to make the 
communication may in special circumstances be a duty 
Avliich he owes to himself, or which a due regard to his 
own interest renders necessary. But in such cases it 
must clearly appear not only that some such communica- 
tion was necessary, but also that the defendant was com- 
pelled to employ the libellous words complained of. If 
he could have done all that his duty or interest de- 
manded without libelling or slandering the j'tlaintiff, then 
the words were not uttered in the due performance of 
any duty and are therefore not privileged. Thus, it is 
very seldom necessary in self-defence to impute evil 
motives to others. Above all, the defendant should 
never charge his adversary with fraud, unless prepared 
with the most conclusive evidence ; for once a charge of 
fraud is made, it must be proved to the letter. [Prior 
cV another v. Wilson, 1 C. B. N". S. 95.) 

So too in cases where some such conmiunication is 
necessary and proper in the protection of the defendant's 
interests, the privilege may be lost if the extent of its 
publication be excessive. I am not entitled to ^Tite to 
the Times because some one has cast a slur on me at a 
private meeting of the board of guardians ; in fact by so 
doing I take the surest method of disseminating the 
charge against myself. So with an advertisement 
inserted in a newspaper, defamatory of the plaintiff; 
if such advertisement be necessary to protect the de- 
fendant's interest, or if advertising was the only way of 
effecting the defendant's object, and such object is a 
lawful one, then the circumstances excuse the extensive 



226 QUALIFIED PRIVILEGE. 

jDiiblication. But if it Avas not necessary to advertise at 
all, or if the defendant's object could have been equally 
well effected by an advertisement v^liich did not contain 
the words defamatory of tbe plaintiff, tben the extent 
given to the announcement is evidence af malice to go to 
the jury ; [Broimi v. Croome^ 2 Stark. 297 ; and Lcnj a'. 
Lcmson^ 4 A. & E. 795, overruling, or at least explain- 
ing Delamj v. Jones, 4 Esp. 191. And see StocJcley \. 
Clement, 4 Bing. 162 ; 12 Moore, 376, and R. v. Enes 
(1732), Andr. 229 ; Bacon's Abr. Libel A. (2), p. 452.) 

Illustrations. 

The jilaintiff, a trader, employed an auctioneer to sell off his goods, 
and otherwise conducted himself in such a way that his creditors reaton- 
aljly concluded that he had committed an act of bankruptcy. One of 
them, the defendant, thereupon sent the auctioneer a notice not to pay 
over the proceeds of the sale to the plaintiff, "he having committed an 
act of bankruptcy." Held by the majority of the Court of C. P. that 
this notice was privileged, as being made in the honest defence of defen- 
dant's own interests. 

Blackham v. Fugh, 2 C. B. Gil ; 15 L. J. C. P. 290. 
So where an agent in temperate language claims a right for his prin- 
cipal, or a solicitor for his client. 

Hargrave v. Le Breton, Burr. 2422. 

Steivard v. Young, L. E. 5 C. P. 122 ; 39 L. J. C. P. 85 ; 18 
W. E. 492 ; 22 L. T. 168. 
The defendant had dismissed the plaintiff from his service on suspicion 
of theft, and, ripon the plaintiff coming to his counting-house for his 
wages, called in two other of his servants, and addressing them in the 
presence of the plaintiff, said — " I have dismissed that man for robbing 
me : do not speak to him any more, in piiblic or in private, or I sliall 
think you as bad as him." — Held a privileged communication, on the 
ground that it was the duty, and also the interest, of the defendant to 
pre\ent his servants from associating with such a person. 

Somerville v. Hawkins, 10 C. B. 583 ; 20 L. J. C. P. 131 ; 16 

L. T. (Old S.) 283 ; 5 Jur. 450. 
And see Manby v. Witt ) 18 C. B. 544 ; 25 L. J. C. P. 294 ; 
Eastmead v. JVitt \ 2 Jur. N. S. 1004. 
The occupier of a house may complain to the landlord or his agent of 
the workmen he has sent to repair the house. 

Toogood V. Sj^yring, 1 C. M. & E. 181 ; 4 Tyrw. 582. 
Kine V. Sewell, 3 M. & W. 297. 
A customer may call and complain to a tradesman of the goods he 



I 



SELF-DEFENCE. 227 

supplies and the manner in which he conducts his business : hut he 
should be careful to make the complaint in the hearing of as few persons 
as possible, and in moderate language. • • 

OiUij V. Ld. Geo. Paulett, 4 F. & F. 1009. 

Cris2) V. Gill, 29 L. T. (Old S.) 82. 
Defendant claimed rent of plaintiff ; plaintiff's agent told defendant that 
plaintiff denied his liability ; defendant thereupon wrote to the agent, 
alleging facts in suppoi't of his claim, and adding, " this attempt to defraud 
me of the produce of the land is as mean as it is dishonest." Held that 
the publication, in these terms, was not privileged, for one can claim a debt 
without imputing fraud, and that the judge was justified in directing the 
jury that it was a libel. 

Tuson V. Evans, 12 A. & E. 733. 
Lord Denman in delivering the judgment of the Court, said, "Some 
remark from the defendant on the refusal to pay the rent was perfectly 
justifiable, because his entire silence might have been construed into an 
acquiescence in that refusal, and so might have prejudiced his case upon any 
future claim ; and the defendant would, therefore, have been privileged in 
denying the truth of the plaintiff's statement. But, upon consideration, 
we are of opinion that the learned Judge was quite right in considering 
the language actually used as not justified by the occasion. Anyone, in the 
transaction of business with another, has a right to use language bond fide, 
which is relevant to that business, and wdiich a due regard to his own 
interest makes necessary, even if it should directly, or by its consequences, 
be injurious or painful to another ; and this is the principle on which 
privileged communication rests ; l;>ut defamatory comments on the motives 
or conduct of the party with whom he is dealing do not fall within that- 
rule. It was enough for the defendant's interest, in the present case, to 
deny the truth of the plaintifl''s assertion : to characterise that assertion 
as an attempt to defraud, and as mean and dishonest, was wholly un- 
necessary." 

And see Eolertson v. McDouijall, 4 Bing. 670 ; 1 M. & P. 692 ; 
3 C. & P. 259. 

Jacob v. Laurence, 4 L. E. Ir. 579 ; 14 Cox, C. C. 321. 
The defendant owed the plaintiff £6 10s. ; the plaintiff told his attorney 
to write and demand the money, and threaten proceedings. The defendant 
in reply wrote to the attorney denouncing the proceeding as a "miserable 
attempt at imposition," and ]iroceeded to discuss the plaintifl''s " transactions 
in business matters generally," asserting that "his disgusting tricks are 
looked upon by all respectable men with scorn." Williams, J., ruled 
that the letter was not privileged and the Court of C. P. upheld this 
ruling. Damages one farthing ; the jury expressly found that there was 
no malice ; but the judge certified for costs on the express ground that 
there was. 

Eimtley v. mird, 1 F. & F. 552 ; 6 C. B. N. S. 514 ; 6 Jur. 
N. S. 18. 
Tlie defendant was Clerk of the Peace of the County of Kent, and 
as such it was his duty to have the register of county voters ])rinted 

ci 2 



228 (QUALIFIED PRIVILEGE. 

the expense of such printing being allowed by the justices in Quarter 
Sessions. In 1854 the defendant employed a new printer, who charged 
less for tlie job ; the defendant wrote a letter to the Finance Committee 
of the justices stating his reasons for the change, and added that to con- 
tinue to pay the charges made by his former printer, the plaintiff, would 
be " to submit to what appears to have been an attempt to extort money 
by misrepresentation." Held that the rest of the letter was privileged, 
as it was proper and necessary for the defendant to explain to the 
Finance Committee what he had done ; but that the words imputing 
improper motives to the plaintiff were uncalled for and malicious. 
Damages £50. 

Coole V. Wildes, o E. & B. 328 ; 24 L. J. Q. B. 367 ; 1 Jur. 
N. S. 610 ; 3 C. L. R. 1090. 
Defendant having lost certain bills of exchange, published a handbill, 
offei'ing a reward for their recovery, and adding that he believed they 
had been embezzled by his clerk. His clerk at that time still attended 
regularly at his office. Held that the concluding words of the handbill 
were quite unnecessary to defendant's object, and were a gratu.itous libel 
on the plaintiff. Damages £200. 

Finden v. Westlake, Moo. & ^lalk. 461. 

See Mulligan v. Cole, L. R. 10 Q. B. 549 ; 44 L. J. Q. B. 153 ; 

33 L. T. 12. 
Ccqntal and Counties Banh v. Henty and Sons, (in C. P. D.), 28 
W. R. 490 ; 42 L. T. 314 ; (C. A.) 5 C. P. D. 514 ; 49 L. J. 
C. P. 830 ; 28 W. R. 851. 
Delivery to a third person for service on the plaintiff of a statutory 
notice under the Insolvent Act of 1869 (Nova Scotia) is primd facie 
privileged, being in the nature of a legal proceeding. 

Bank of British North America v. Strong, 1 App. Cas. 307 ; 34 
L. T. 627. 



(v.) Statements provoked hy a iirevious attack hy 
plaintiff on defendant. 

Every man has a riglit to defend liis character against 
false aspersion. It may be said that this is one of the 
duties which he owes to himself and to his famil3\ 
Tlierefore commimications made in fair self-defence are 
privileged. If I am attacked in a newsj^aper, I may 
write to that paper to rebut the charges, and I may at 
the same time retort upon my assailant, where such 
retort is a necessary part of my defence or fairly arises 



RETORTS. 229 

out of the charges he has made against me. i^G' Donoglme 
V. Husse/j, Ir. E. 5 C. L. 124.) A man who himself 
commenced a newspaper war camiot subsequently come 
to the Court as a plaintiff, to complain that he has had 
the worst of the fray. But even in rebutting an accu- 
sation, the defendant may not of course state what he 
knows at the time to be untrue, or intrude umiecessarily 
into the j)riYate life or character of his assailant. The 
privilege extends only to such retorts as the plaintiff has 
himself provoked, ^ee post, p. 300. 

Illustrations. 

At a vestry meeting called to elect fresh overseers, the plaintiff accused 
the defendant, one of the outgoing overseers, of neglecting tlie interests of 
tlie vestry, and not collecting the rates ; the defendant retorted that the 
plaintiff had been bribed by a railway company. Held that the retoit was 
a mere tu quoqw, in no way connected witli the charge made agamst him 
by the plaintiff, and was tlierefore not privileged ; for it was not made in 
self-defence. 

Senior v. MeeJhnuI, 4 Jur. N. S. 1039. 

And see Huntley v. JFcml, 6 C. B. N. S. 514 ; G Jur. N. S. 
18 ; 1 F. & F. 552. 

Murphy v. Halpin, Ir. R. 8 C. L. 127. 
The plaintiff was a policy-holder in an insurance company, and published 
a pamphlet accusing the directors of that company of fiaud. The directors 
l^ublished a pamphlet in reply, declaring the charges contained in the 
]ilaintiff's pamphlet to l>e false and calumnious, and also asserting that in a 
suit he had instituted he had sworn in support of those charges, in opposi- 
tion to his own handwriting. Cockburn, C.J., lield the directors' pamphlet 
prima facie privileged ; and directed the jury in the following words : — 
" If you are of opinion that it was published bond fide for the purpose of 
the defence of the company, and in order to prevent these charges from 
operating to their prejudice, aud with a view to vindicate the character of 
the directors, and not with a view to injure or lower the character of the 
plaintiff — if you are of that opinion and think that the publication did not 
go beyond the occasion, then you ought to find for the defendants on the 
general issue." Verdict for the defendants. 

KKnig v. Eitchie, 3 F. & F. 413. 

R. V. Veley, 4 F. e^ F. 1117. 
The defendant was a candidate for the County of "Waterford. Shortly 
before the election the Kilkenny Tenant Farmers' Association published in 
Freeman's Journal an address to the constituency describing the defendant 
as " a tme type of a bad Irish landlord — the scourge of the country," and 
charging him with various acts of tyranny and oppression towards his 



230 QUALIFIED PRIVILEGE. 

tenants, and especially towards the plaintiff, one of liis former tenants. The 
defendant, thereupon, published, also in Freeman's Journal, an address to 
the constituency, answering the charges thus brought against him, and in 
so doing, necessarily libelled the plaintiff. HpJd that such an addi'ess, 
being an answer to an attack, was lyrinnd facie privileged. 

Divyer v, Esmonde, 2 L. R. (Ir.) 243, reversing the decision of the 

Court below ; Ir. R. 11 C. L. 542. 
See also OWonoghiie v. Hussey, Ir. R. 5 C. L. 124. 
The plaintiff, a barrister, attacked the Bishop of Sodor and Man before 
the House of Keys in an argument against a private bill, imputing to the 
bishop improper motives in his exercise of church patronage. The bishop 
wrote a charge to his clergy refuting these insinuations, and sent it to the 
newspapers for publication. Held that under the circumstances the bishop 
was justified in sending the charge to the newspaper, for an attack made in 
public required a public answer. 

Langhton v. Bishojy of Sodor and Man, L. R. 4 P. C. 495 ; 42 L. 
J." P. C. 11 ; 9 Moore, P. C. C. N. S. 318 ; 21 W. R. 204 ; 
28 L. T. 377. 
See Hihbs v. Wilkinson, 1 F. & F. 608. 

Hcmmings v. Gasson, E. B. & E. 346 ; 27 L. J. Q. B. 252 ; 4 
Jur. N. S. 834. 
Such previous attacks might also be matter for a counterclaim. 
Quin V. Hession, 40 L. T. 70 ; 4 L. R. (Ir.) 35. 



Statements invited hij the jAaintiff. 

Closely akin to retorts proYokcd by the plaintiff's own 
attack, are communications procured by the j)laintiff's 
own contrivance. If the only publication that can be 
proved is one made by the defendant to the plaintiff or 
to some agent of the plaintiff, and it is clear that such 
publication was procured matd fide with a view to the 
action, and not in the ordinary course of business or of 
social intercoiu'se, then such a publication will be held 
privileged ; for the plaintiff' brought it on himself. But 
this rule only applies to cases in which there had been 
no previous publication by the defendant of the same 
words or libel. {^Duke of BriinsivicJc v. Harmer^ 14 Q. B. 
185 ; 19 L. J. Q. B. 20 ; 14 Jur. 110 ; 3 C. & K 10.) 

It makes a great difference if the report originated with the 
defendant, and what he has himself previously said produces the 



STATEMENTS INVITED BY THE PLAINTIFF. 231 

plaintiff's inquiry. (Per Lord Lyndhurst in Smith v. Matheivs, 
1 Moo. & Rob. 151.) If in answer to such an inquiry the de- 
fendant does no more than acknowledge having uttered the words, 
no action can be brought for the acknowledgment : the party 
injured must sue for the words jDreviously spoken, and use the 
acknowledgment as proof that those words had been spoken. 
But if besides saying "Yes" to the question asked, he repeats 
the words in the presence of a third person, asserting his belief 
in the accusation and that he can prove it ; such a statement is 
slanderous and is not privileged, although elicited by the 
plaintiff's question. See Griffiths v. Leiuis, 7 Q. B. 61 ; 14 
L. J. Q. B. 199, in which case Lord Denman remarks : "Injuri- 
ous words having been uttered by the defendant respecting the 
plaintiff, the plaintiff was bound to make inquiry on the 
subject. When she did so, instead of any satisfaction from the 
defendant, she gets only a repetition of the slander. The real 
question comes to this, does the utterance of slander once give 
the privilege to the slanderer to utter it again whenever he is 
asked for an explanation ? It is the constant course, when a ' 
person hears that he has been calumniated, to go, with a 
witness, to the party who, he is informed, has uttered the 
injurious words, and say, ' Do you mean in the presence of 
witnesses to persist in the charge you have made ? ' And it is 
never wise to bring an action for slander unless some such 
course has been taken. But it never has been supposed, that 
the persisting in and repeating the calumny, in answer to such 
a question, which is an aggravation of the slander, can be a 
privileged communication ; and in none of the cases cited has 
it ever been so decided." And see Richards v. Richards, 2 
Moo. & Rob. 557; Force v. Warren, 15 C. B. (N.S.) 80G. If, 
however, the second occasion on which the words were spoken 
is clearly privileged and justifiable, the mere fact that defendant 
had previously spoken them will not of itself destroy the 
privilege ; the plaintiff must rely on the first utterance : that 
may be privileged as well, Kine v. Seivell, 3 M, & W. 297. 
This rule is sometimes cited as an instance of the maxim 
" Volenti nonfit injuria" and is then not classed as a ground 
of privilege, but would rather be stated thus : — That if the only 
publication proved at the trial be one brought about by the 
plaintiff's own contrivance, this is no sufficient evidence of 



232 QUALIFIED PRIVILEGE. 

publication, and the plaintiff must be nonsuited. Such was 
the ruling of Lord Ellenborough in Smitli v. Wood, 3 Camp. 
323 ; but this is inconsistent with Duke of Brunsiuich v. 
Harmer, 14 Q. B. 185 ; and in Warr v. Jolly, G Car. & P. 497, 
it was expressly held that a communication purposely procured 
by the plain tiiT ivas privileged. 

Illustrations. 

" If a servant, knowing the character which his master will give of him 
procures a letter to he written, not with a fair view of inquiring the cha- 
racter, but to procure an answer upon which to groinid an action for a libel, 
no action can be maintained.'" Per Lord Alvanley in 

King v. Waring et ux., 5 Esp. 15. 
The defendant discharged the plaintiff, his servant, and when applied to 
by another gentleman, gave him a bad character. The plaintiff's brother- 
in-law, Collier, thereupon repeatedly called on the defendant to inquire 
why he had dismissed the plaintiff : and at last the defendant wrote to 
Collier stating his reasons specificall}'. The plaintiff sued out a writ the 
same day the letter was written. Held, by Lord Mansfield, C.J., and 
Butler, J., that no action lay on such letter, as the defendant was evidently 
entrapped into writing it. 

JFeathersto)i v. Haivkins, 1 T. E. 110. 

See also Taylor v. Haiclcins, 16 Q. B. 308 ; 20 L. J. Q. B. 313. 

R. V. Hart, 1 "\Vm. Black. 386 ; and the remarks of Lord Alvan- 
ley, C.J., in 

Rogers v. Clifton, 3 B. & P. 592. 
A ■^^•itness (whom we must presume to have been an agent of the plain- 
tiff's, though it is not so stated in the report) heard that the defendant had 
a copy of a libellous print, went to defendant's house, and asked to see it ; 
the defendant thereupon 2)roduced it, and pointed out the figure of the 
plaintiff and the other persons caricatured. Lord Ellenborough nonsuited 
the plaintiff, as there was no other publication proved. 

Smith v. JFood, 3 Camp. 323. 
The plaintiff had been in partnership with his brother-in-law, Pinhorn, 
as a linendraper at Southampton ; but gave up business and became a 
dissenting minister. Rumours reached his congregation that he had cheated 
his brother-in-law in the settlement of the accounts on his retirement from 
the partnership). The plaintiff challenged inquiry and invited the malcon- 
tents in the congregation to appoint some one to thoroughly sift the matter. 
The malcontents appointed the defendant, and the plaintiff appointed the 
Rev. Robert Ainslie. Held, that all communications between the defendant 
and Ainslie relative to the matter Avere privileged, as being made with the 
sanction and concurrence of the plaintiff. 

Hopwood V. Thorn, 8 C. B. 293 ; 19 L. J. C. P. 94 ; 14 Jur. 87. 

And see Bayer v. Begg, 15 Ir. C. L. R. 458. 



STATEMENTS INVITED BY THE PLAINTIFF. 233 

In answer to plaintiff 's inquiry as to a rumour against himself, defendant 
told him, in the presence of a third party, what some one had said to his 
(defendant's) wife. There was no proof that the defendant had ever uttered 
a word on the subject till he was applied to by the plaintiff. Held that the 
answer was privileged. 

Warr v. Jolly, 6 Car. & P. 497, as explained by Lord Denman in 

Griffiths V. Levels, 7 Q. B. 67 ; 14 L. J. Q. B. 199 ; 9 Jur. 370. 

And see Richards v. Richards, 2 Moo. & Eob. 557. 
The plaintiff was a builder and contracted to build certain schoolrooms at 
Bermondsey. The defendant started a false report that in the building the 
plaintiff had ^^sed inferior timber ; the report reached the plaintiff, who 
thereupon suspended the work and demanded an inquiry ; and the com- 
mittee of the school employed defendant to survey the work and report. 
He reported falsely that inferior timber was used. Lord Lyndhurst 
directed the jury that if they believed that the reports which produced the 
inquiry originated with the defendant, the defendant's report to the com- 
mittee was not jirivileged. Verdict for the plaintiff. 

Smith V. Mathev-s, 2 Moo. & Eob. 151. 
Barton, a friend of the defendant, employed a builder, the plaintiff's 
master, to build a house for him : the defendant informed Barton that the 
plaintiff' Avhile at work on his house had stolen some quarterings. Barton 
complained to the master builder, who came down to the defendant's to 
inquire into the circumstances. A repetition of the charge made then to 
the plaintiff 's master without malice was held privileged, and as the plaintiff' 
had not called Barton to prove the original remark, the jury found for the 
defendant, and a new trial was refused. 

Kine V. Sewdl, 3 M. & W. 297. 
But note that the statement made to Barton would, if proved, have been 
privileged also, although voluntary, as he was the owner of the property 
alleged to have been stolen. 



234 QUALIFIED PRIVILEGE. 



II. WlIEEE THE DEFEISDANT HAS AN INTEREST IX THE 
SUBJECT-MATTER OF THE CO]\rMrNICATION, AND THE 
PERSON TO WHOM THE COMMUNICATION IS MADE, 
HAS A CORRESPONDING INTEREST. 

Ill such a case every commimication honestly made in 
order to protect such common interest is privileged by 
reason of the occasion. 

Such common interest is generally a pecuniari) one ; 
as that of two customers of the same bank, two directors 
of the same company, two creditors of the same debtor. 
But it may also be p'ofessional^ as in the case of two 
officers in the same corps, or masters in the same school, 
anxious to preserve the dignity and reputation of the 
body to which they both belong. In short, it may be 
any interest arising from the joint exercise of any legal 
right or privilege, or fi'om the joint performance of any 
duty imposed or recognised by the law. Thus two 
executors of the same aWII, two trustees of the same 
settlement, liaA^e a common interest, though not a pecu- 
niary one, in the management of the trust estate. So 
the ratepayers of a parish have a common interest in the 
selection of fit and projier constables to serve in the 
parish, their salary being paid out of the rates. So 
relations by blood or marriage have a common interest 
in theii' family concerns. But beyond this there is no 
privilege. The " common interest " must be one which 
the law recognises and appreciates. No privilege 
attaches to gossip, however kiteresting it may be to both 
speaker and hearers. The law never sanctions mere 
VTilgar ciu'iosity or officious intermeddling ia the 
concerns of others. To be within the privilege, the 
statement must be such as the occasion warrants and 
must be made hand fide to protect the private interests 



COMMON INTEREST. 235 

both of the speaker and of the person addressed. If in 
fact the defendant had no other interest in the matter 
beyond that which any other edncated person would 
naturally feel, interference on his part would be officious 
and unprivileged. {Botterill cV another v. Whijtehead^ 41 
L. T. 588.) 

Illustrations. 

The defendant and Messrs. Wright and Co., his bankers, were both inte- 
rested in a concern, the management of which the bankers had entrusted to 
the phaintiff, their solicitor. A confidential letter written by the defendant 
to Messrs. Wright and Co., charging the plaintiff with professional miscon- 
duct in the management of such concern was hold privileged by Lord 
Ellenl)orougli. 

McBourjall v. Claridge, 1 Camp. 267. 
A creditor of the plaintiff may comment on the plaintiff's mode of con- 
ducting his business to the man who is surety to that creditor for the plain- 
tiff's trade debts. 

Dunman v. Bigg, 1 Camp. 269, n. 
Where A. & B. have a joint interest in a matter, a letter, written by A. 
to induce B. to become a party to a suit relating thereto, is privileged 
though it may refer to the plaintiff in angry terms. 
Shipley v. Todhunter, 7 C. & P. 680. 
A creditor was appointed trustee in liquidation of the debtor's estate, the 
debtor continuing to manage his former business for the benefit of the 
estate. A letter written by the trustee to another creditor, commenting in 
A'ery severe terms on the debtor's conduct, is privileged. 

S2nll V. Maule, L. R. 4 Exch. 232 ; 38 L.' J. Ex. 138 ; 17 W. R. 
805 ; 20 L. T. 675. 
A person interested in the proceeds of a sale may give notice to the 
auctioneer not to part Avith them to the plaintiff, who ordered the sale, on 
the ground that he has committed an act of bankruptcy. 

Blackham v. Pugh, 2 C. B. 611 ; 15 L. J. C. P. 290. 
So the son-in-law of a lady has sufhcient interest in whom she marries to 
justify him in warning her not to marry the plaintiff, if he honestly believes 
him, however erroneously, to be of bad character. 

Todd V. Hawkins, 8 C. & P. 88 ; 2 M. & Rob. 20. 
So, too, a bishop's charge to his clergy h lorimd facie privileged, although 
it contain calumniatory matter. 

Laughton v. Bishop of Sodor and Man, L. R. 4 P. C. 495 ; 42 
L. J. P. C. 11 ; 21 W. R. 204 ; 28 L. T. 377 ; 9 Moore, P. C. C 
N. S. 318. 
So the reports of the directors and auditors of a comjiany printed and 
circulated among the shareliolders are privileged. 

Lawless v. Aiujlo-Egypliun Votlou Co., L. R. 4 Q. B. 262 ; 10 B. 
& S. 226 ; 38 L. J. Q. B. 129 ; 17 W. R. 498. 
A communication from a firm of brewers to the tenants of their public. 



236 ■ QUALIFIED PRIVILEGE. 

houses, refusing to accept any longer in payment clieques dra"\vn on a parti- 
cular bank is frima facie privileged. 

Caintal and Counties Bank v. Henty and Sons (in C. P. D.) ; 28 
W. R 490 ; 42 L. T. 314 ; (C. A.) 5 C. P. D. 514 ; 49 L. J. 
C. P. 830 ; 28 W. R. 851. 
Defendant was a life governor of a public school to which the plaintiff sup- 
plied butchers' meat ; defendant told the steward of the school, whose duty 
it was to examine the meat, that defendant had been known to sell bad 
meat. Held a privileged communication. 

Humphreys v. StiUwell, 2 F. & F. 590. 
And see Cris2} v. Gill, 29 L. T. (Old S.) 82. 
A Member of Parliament gave notice that he would ask in the House of 
Commons why the plaintiff, a colonel in the army, had been dismissed ; 
thereupon the defendant, the plaintiff's superior oflicer, who had been 
instrumental in procuring his discharge, called on the Member, whom he 
knew well, to explain the true facts of the case. Lord Campbell considered 
the occasion i)rimd facie privileged ; but the jury found it Avas done mali- 
ciously, and awarded the jdaintiff £200 damages. 

Diclmn v. Earl of Wilton, 1 F. & F. 419. 
A hand fide communication between a Member of Parliament and his con- 
stituents on a matter of political or local interest is privileged ; such as a 
report of any speech of his, circulated privately among his constituents for 
their information. Per Lord Campbell, C.J., and Crompton, J., in 
Davison v. Duncan, 7 E. & B. 233 ; 26 L. J. Q. B. 107. 
And Cockburn, C.J., in 

JFason v. Walter, L. R. 4 Q. B. 95 ; 8 B. & S. 730 ; 38 L. J. 
Q. B. 42 ; 17 W. R. 169 ; 19 L. T. 416. 
But it would be otherwise if a member of Parliament published his speech 
to all the world with the malicious intention of injuring the plaintiff". 
R. v. Lord Abingdon, 1 Esp. 226. 
B. V. Creeveij, 1 M. & S. 273. 
If a parish officer seek re-election, charges made against him at the 
parish meeting for the nomination of officers as to his previous conduct in 
the office, are privileged, if made bond fide. 
George v. Goddard, 2 F. & F. 689. 
Kershaw v. Bailey, 1 Ex. 743 ; 17 L. J. Ex. 129. 
See Senior v. Medland, 4 Jur. N. S. 1039. 
Pierce v. Ellis, 6 Ir. C. L. R. 55. 
Bennett v. Barry, 8 L. T. 857. 
Harle v. Catherall, 14 L. T. 801. 
But as to a personal attack on the private character of a candidate at 
parliamentary election, see 

Duncombe v. Daniell, 8 C. & P. 222 ; 2 Jiu-. 32 ; 1 W. W. & H. 101. 
Sir Thomas Charges v. Eoiie, 3 Lev. 30. 

Hoiv V. Prin, Holt, 652 ; 7 Mod. 107 ; 2 Salk. 694 ; 2 Ld. Raym. 
812 ; affirmed in the House of Lords, sub nomine Prinn v. 
Howe, 1 Brown's Parly. Cas. 64. 
Onslow V. Home, 3 Wils. 177 ; 2 W. Bl. 750. 
Harwood v. Sir J. Astley, 1 N. R. 47. 



COMMON INTEREST. 237 

A paiisli meeting was called to investigate the accounts of the parish 
constable ; one ratepayer was unable to attend, so he wrote a letter to be 
read to the meeting concerning the constable and his accounts. This letter 
was held primi facie privileged. For had he attended the meeting and 
made the same charge orally, such speech would have been privileged. 
Spencer v. Amerton, 1 Moo. & Eob. 470. 

Se\'eral fictitious orders for goods had been sent in the defendant's name 
to a tradesman, who thereupon delivered the goods to the defendant. Tlie 
defeuiiant returned the goods, and being shown tiie letters ordering them, 
wrote to the tradesman that in his opinion the letter was in the plaintiff's 
handwriting. Held that this expression of opinion was privileged, as both 
defendant and the tradesman were interested in discovering the culprit. 

Croft v. Stevens, 7 H. & N. 570 ; 31 L. J. Ex. 143 ; 10 W. R. 
272 ; 5 L. T. 683. 

The defendant had a dispute with the Newry Mineral Water Company, 
which they agreed to refer to " some respectable printer who should be in- 
different between the parties," as arbitrator. The manager of the company 
nominated the plaintiff", a printer's commercial traveller. The defendant 
declined to accept him as arbitrator, and when pressed for his reason, wrote 
a letter to the manager stating that the plaintiff" had formerly been in the 
defendant's employment, and had 1jeen dismissed for drunkenness. The 
plaintiff", thereupon, brought an action on the letter as a libel concerning 
him in the way of his trade. Held that the letter was privileged, as both 
parties were interested in the selection of a proper arbitrator. 
Hohbs V. Bryers, 2 L. R Ir. 496. 

But a judge of the Bankruptcy Court and an opposing creditor have no 
such common interest in the case of an insolvent debtor as to render privi- 
leged a letter written hj the creditor to the judge previously to the hearing 
of the case. Writing such a letter is indeed a contempt of Court. 
Gould V. Hiilme, 3 C. & P. 625. 



But where a large number of persons have an interest 
more or less remote in the matter, defendant will not be 
privileged in informing them all by circular or other- 
wise, unless there was no other way of effecting his 
object. Thus in the case of most societies there is a 
council, or a managing committee, or a manager, or a 
body of trustees ; and communications made confiden- 
tially to them will be privileged which would not be 
privileged, if addressed in the first instance to the whole 
body of subscribers. " Such a communication as the 
present (a charge against the medical officer of a Poor 
Law Union) ought to be confined in the first instance to 



238 QUALIFIED PRIVILEGE. 

those whoso duty it is to investigate the charges." 
(Fcr Mellish, L. J., iu Furcell v. Voider, 2 C. P. D. at 
p. 221.) 

A communication can scarcely be called confidential 
which is addressed to some two or three hundred people 
at once. Thus the mere fact that I subscribe to a 
charity does not entitle me to canvass the private cha- 
racter, and discuss the private concerns, of the medical 
man employed by the charity, and so cause his past life 
to become a topic of general conversation in the town ; 
although any representation made to the managing com- 
mittee would be privileged ; and if absolutely necessary 
to the success of the charity, I might after due notice 
given to the medical man, appeal from the decision of 
the committee to the general body of subscribers. [Martin 
V. Strong^ 5 A. & E. 535, as explained in Kine v. Setvell, 
3 M. & W. 297.) 

Illustrations. 

A letter written by a subscriber to a charity to the committee of manage- 
ment of the charity concerning the conduct of their secretary in the manage- 
ment of the funds of the charity is primd facie privileged. 
Maitland v. Bramicell, 2 F. & F. 623. 
See also Hartwell v. Vesey, 3 L. T. 275. 
Any statement made by a director of a company to his fellow directors, 
as to the conduct and character of their auditor, is privileged, though it 
relates to his conduct with reference to another comj^any, of which he was 
secretary and not auditor. 

Harris v. Tliompson, 13 C. B. 333. 
But it would seem that a similar statement, if made hj one private share- 
holder in the company to another, would not be privileged. 

Brooks V. Blanshard, 1 Cr. & Mees. 779 ; 3 Tyrw. 844. 
Defendant, who was a sergeant in a volunteer corps, of which plaintiff 
also was a member, represented to the committee by whom the general 
business of the corps was conducted, that plaintiff was an unfit person to 
be permitted to continue a member of the corps ; that he was the execu- 
tioner of the French king, &c. Lord Ellenborough held the communica- 
tion privileged. 

Barhaud v. Hookham, 5 Esp. 109. 

See Bell v. Parke, 10 Ir. C. L. R. 284 ; 11 Ir. C. L. R. 413. 
But for one member of a charitable institution to send round to aU the sub- 



EXTENT OF COMMUNICATION. 239 

scribera a circular calliug on them " to reject the unworthy claims of Miss 
Hoare," and stating that " she squandered away the money which she did 
obtain from the benevolent in printing circulars abusive of Commander 
Dickson," the secretary of the institution, is libellous, and not privileged. 
Hoare v. SikerlocJc (No. 1 ; 1848), 12 Q. B. G24 ; 17 L. J. Q. B, 
306 ; 12 Jur. 695. 
" There may be a thousand subscribers to a charity," observes Lord Denman 
in Martin v. Strong, 5 Ad. & E. 538. " Such a claim of privilege is too large." 



And a fortiori, if tlie words be spoken in the jDresence 
of strangers wlioUy uninterested in the matter, the com- 
munication loses all privilege. The defendant in all 
these cases must be careful that the publication " does 
not go beyond the occasion," that is, that his words 
should be confined to those who are concerned to hear 
them. Words of admonition or of confidential advice 
should be given privately. It is true that the accidental 
presence of some third person will not alone take the 
case out of the privilege, if it was unavoidable or hap- 
pened in the usual course of business affairs. But if 
the defendant purposely contrives that a stranger should 
be present, Avho has no right to be present, and who in 
the natural course of things would not be present, all 
privilege is lost. (Kersliaw v. Bailey, 1 Ex. 743 ; 17 
L. J. Ex. 129 ; Scarll v. Dixon, 4 F. & F. 250.) 

So too in making a communication which is only 
privileged by reason of its being made to a person inter- 
ested in the subject-matter thereof, the defendant must 
be careful not to branch out iuto extraneous matters with 
which such person is unconcerned. The privilege only 
extends to that portion of the communication in respect 
of which the parties have a common interest or duty. 

The defendant must also be careful to avoid the use 
of exaggerated exj^ressions ; for the privilege may be 
lost by the use of violent language when it is clearly 
uncalled for. {Fryer v. Kinnersley, 15 C. B. IN". S. 422 ; 
33 L. J. C. P. 96'; 10 Jur. K S. 441 ; 12 W. E. 155; 



240 QUALIFIED PRIVILEGE. 

9 L. T. 415 ; Senior y. Mcdland, 4 K & :N'. 843 ; 4 Jur. 
K S. 1039.) 

And especially in cases where a rumour reaches the 
clefendant, of which he feels it his duty to inform others 
who are equally interested with himself in its subject- 
matter, he should be very careful to report it precisely 
as he heard it, Avithout any addition or exaggeration. 
{DmmageY. Prosser, 4 B. & Cr. 247 ; 6 Dowl. & E. 296.) 

In short whenever the mode and extent of a privi- 
leged publication are more injurious to the plaintiff than 
necessary, this may be evidence of malice in the pub- 
lisher. Though the words themselves would be privi- 
leged if addressed only to the few individuals concerned, 
yet the privilege may be lost if the defendant deliberately 
chooses to publish them to the general public, or to any 
one who had no corresponding interest in the communi- 
cation. Confidential communications should not be 
shouted across the street for all the world to hear. 
[Wilson V. Collins, 5 C. & P. 373; Odd// v. Lord George 
Faidet, 4 F. & F. 1009.) Defamatory remarks, if written 
at all, should be sent in a private letter properly sealed 
and fastened up : not written on a postcard, or sent by 
telegram ; for two strangers at least read every telegram, 
many more most postcards. (Williamson \. Freer, L. E. 
9 C. P. 393 ; 43 L. J. C. P. 101 ; WUtfield v. .S'. E. R. 
Co., E. B. & E. 115 ; Rohinson v. Jones, 4 L. E. Jr. 391.) 

Letters as to the plaintiff's private affairs should not 
be published in the newspaper, however meritorious the 
writer's purpose may be : unless indeed there is no other 
way in which the Avriter can efficiently effect his purpose 
ancl discharge the duty which the law has cast upon 
him. 8o with an advertisement inserted in a newspaper, 
defamatory of the plaintiff; if such advertisement be 
necessary to protect the defendant's interest, or if adver- 
tising was the only way of effecting the defendant's 



UNNECESSARY PUBLICITY. 241 

object, and such object is a legal one, then the circum- 
stances excuse the extensive publication. But if it was 
not necessary to advertise at all, or if the defendant's 
object could have been equally well effected by an 
advertisement Avhich did not contain the words defama- 
tory of the plaintiff, then the extent given to the an- 
nouncement is evidence of malice to go to the jury. 
[Brown v. Croome, 2 Stark, 297 ; and Lay v. Lawson^ 4 
A. & E. 795, overruling Delanu v. Joncs^ 4 Esp. 191.) 
To deliberately give any unnecessary publicity to state- 
ments defamatory of another, raises at least a suspicion 
of malice. 

Illustvations . 

Defendant made a speech at a public meeting called to petition Parlia- 
ment, and subsequently handed a copy of what he had said to the reporters 
for publication in the newspapers ; such publication was held to be in 
excess of the privilege. 

Pierce v. Ellis, 6 Ir. C. L. R. 55. 
A personal attack on the private life and character of a candidate at a 
parliamentary election, published by a voter in the newspapers, is not 
privileged. " However large the privilege of electors may be," said Lord 
Denman, C.J., "it is extravagant to suppose that it can justify the publi- 
cation to all the world of facts injurious to a person who happens to stand 
in tlie situation of a candidate." 

Buncombe v. Da7nell, 8 C. & P. 222 ; 2 Jur. 32 ; 1 W. W. & H. 101. 
A letter sent to a newspaper by members of the Town Council and pub- 
lished therein, charging certain contractors for the erection of the Borough 
Gaol with " scamping " their work, is not privileged ; although preferring 
the same charge at a meeting of the Town Council probably would have been. 

Himjyson v. Downs, 16 L. T. 391. 

But see llarle v. Catherall, 14 L. T. 801. 
The defendant, the tenant of a farm, required some repairs to be done at his 
house ; the landlord's agent sent up two workmen, tlie plaintiff and Taylor. 
They made a bad job of it ; the plaintiff undoubtedly got drunk while on the 
premises ; and the defendant was convinced from what he heard that the 
plaintiff had l)roken open his cellar-door and drunk his cider. Two days 
afterwards the defendant met the plaintiff and Taylor together, and charged 
the plaintiff with breaking open the cellar-door, getting drunk, and spoiling 
the job. He repeated this charge later in the same day to Taylor alone in 
the absence of the plaintiff, and also to the landlord's agent. Held, that 
the communication to the landlord's agent was clearly privileged, as both 
were interested in the repairs being properly done ; that the statement made 
to the plaintiff in Taylor's presence was also privileged, if not malicious ; but 

R 



242 QUALIFIED PRIVILEGE. 

tliat the repetition of the statement to Taylor in the absence of the plaintiff 
was nnaiithorised and officious, and therefore not protected, although made 
in the belief of its truth. 

ToogooH V. Spyring, 1 C. M. & R. 181 ; 4 Tyrw. 582. 
Proof that defendant industriously circulated the libel will be some evi- 
dence of malice. 

Gathercok v. Miall, 15 M. & W. 319 ; 15 L. J. Ex. 179 ; 10 Jur. 
337. 
A shareholder in a railway company summoned a meeting of share- 
holders, and also invited reporters for the press to attend. Charges which 
he made at such meeting against one of the directors for his conduct of the 
affairs of the company, held not privileged, because persons not shareholders 
were present. 

Parsons v. Suryey, 4 F. & F. 247. 
But where the auditors of a company reported that the manager's accounts 
were badly kept, and that there was a large deficiency not accounted for ; 
and at the general meeting this report with others was submitted to the 
shareholders, and the meeting resolved that they should be printed and 
circulated among the shareholders, which was done. Held that the privilege 
attaching to such reports was not lost merely by the necessary publication 
of them to the compositors, &c., in the ordinary course of printing. 

Lawless v. Awjlo-Egyptian Coiton Co., L. R. 4 Q. B. 262 ; 10 

B. & S. 226 ; 38 L. J. Q. B. 129 ; 17 W. R. 498. 
And see Davis v. Cutbush and others, 1 F. & F. 487. 
Lake V. King, 1 Lev. 240 ; 1 Saund. 131 ; Sid. 414 ; 1 Mod. 58. 
The plaintiff and defendant were jointly interested in property in Scot- 
land, to the manager of which the defendant wrote a letter principally 
about the property and the conduct of the plaintiff with reference thereto, 
but also containing a charge against the plaintiff with reference to his 
conduct to his mother and aunt. Held that though the part of the letter 
about the defendant's conduct as to the property might be confidential and 
privileged, such privilege could not extend to the part of the letter about 
the plaintiff' 's conduct to his mother and aunt. 

Warren v. Warren, 1 C. M. & R. 250 ; 4 Tyr. 850. 
Simmonds v. Dunne, Ir. R. 5 C. L. 358. 
If a clergyman or parish priest, in the course of a sermon, " make an 
example " of a member of his flock by commenting on his misconduct, and 
either naming him, or alluding to him in unmistakable terms ; his words 
will not l^e privileged, although they were uttered bona fide in the honest 
desire to reform the culprit and to warn the rest of his hearers ; and 
although the congregation would probably be more interested in this part 
of the discourse than in any other. If the words be actionable, the clergy- 
man must justify. 

Magrath v. Finn, Ir. R. 11 C. L. 152. 
Kinnahan v. McCullagh, ib. 1. 
B. V. Knight (1736), Bacon's Abr. A. 2 (Libel). 
Gilpin V. Fowler, 9 Ex. 615 ; 23 L. J. Ex. 152 ; 18 Jur. 293. 
And see Greemvood v. Prick, Cro. Jac. 91, as overruled by Lord 
Denman, 12 A. & E. 726, ante, p. 6. 



PRIVILEGED REPORTS. 243 



III. Privileged Eeports. 
(i.) Reports of Judicial Proceedings. 

Evciy impartial aucl accurate report of any proceed- 
ing in a public law court is privileged, unless the court 
has itself prohibited the publication, or the subject- 
matter of the trial be unfit for publication. 

This rule applies to all proceedings in any court of 
justice, superior or inferior, of record or not of record. 
" For this purpose no distinction can be made between a 
court of piepoudre and the House of Lords sitting as a 
court of justice. {Fer Lord Campbell in Lcivis v. Levy^ 
E. B. & E. 537 ; 27 L, J. Q. B. 287 ; 4 Jur. IST. S. 970.) 
And in the case of a magistrate or of justices sitting in 
petty session, it is immaterial whether the application 
be made to them ex parte or not. It appears to be also 
immaterial whether the matter be one over which they 
have jimsdiction or not, and whether they disj)ose of the 
case finally or send it for trial to the assizes. 

The reason for this privilege is thus stated by Law- 
rence, J., in R. V. ^VrifjU, 8 T. E. 298. " The general 
advantage to the country in having these proceedings 
made public more than counterbalances the inconve- 
nience to private persons Avhose conduct may be the 
subject of such proceedings." Cockburn, C. J., uses 
language almost identical in Wason v. Walter., L. E. 4 
Q. B. 87 ; 8 B. & S. 730 ; 38 L. J. Q. B. 34 ; 17 W. E. 
169; 19L. T. 418. 

It is only since 1878 that tlic law Las extended so wide an 

E 2 



244 QUALIFIED PRIVILEGE. 

immunity to reports of proceedings before police magistrates or 
justices of the peace. Thus, while Leivis v. Levy decided that 
a report of a preliminary investigation before a magistrate was 
privileged if the result was that the summons was dismissed 
and the person accused discharged, still Duncan v. Tlavaites, 
o B. & C. 55() ; 5 D. & R 447, is an express authority for hold- 
ing such a report unprivileged, if the accused be ultimately seut 
to take his trial before a jury. The reason for the distinction 
is that in the former case the decision is final, and the investi- 
gation at an end ; in the latter the examination was preliminary 
merely, and the minds of the future jur}^ might be influenced 
by the publication. 

Again, there is an obvious distinction between an ex parte 
application, where the accused has no opportunity of defending 
himself, and a full trial where both parties address the court by 
their counsel or solicitors, and call what witnesses they please. 
There are even dicta of certain eminent judges which would 
seem to deny any privilege to fair and accurate reports of 
ex jMvte proceedings in the superior Courts. (Per Maule, J., 
in Hoare v. Sllverlock (No. 2, 1850), 9 C. B. 23 ; 19 L. J. C. P. 
215 ; and Abbott, C. J., in Duncan v. TInvaites, 3 B. & C. 556.) 
But Curry v. Walter, 1 Bos. & P. 525 ; 1 Esp. 456, is an 
express decision that such reports are privileged, a case which 
was at one time doubted, but is now clear law. And now the 
decision in Usill v. Hales settles the law, and extends immunity 
to all bond fide and correct reports of all proceedings in a 
magistrate's court, whether ex parte or otherwise ; and such 
cases as R. v. Lee, 5 Esp. 123, must be considered to be over- 
ruled, in so far at all events as they lay down any general rule 
to the effect that it is unlawful to publish any report of ex parte 
proceedings. 

A third distinction was as to matters coram non judice. It 
might Avell be contended that where a magistrate listens to a 
slanderous complaint, and gives some advice as to a matter 
wholly outside his jurisdiction, he is not discharging any magiste- 
rial function nor acting in any judicial capacity. It is as though 
the conversation took place in someprivatecitizen'sdrawing-room. 
And to this effect was the decision in McGregor v. Thwaites, 
3 B. & C. 24 ; 4 D. & R. 695. But this decision is practically 
overruled by Usill v. Hides, in which case Lord Coleridge took 



I 



REPORTS OF TRIALS. 245 

a distinction (3 C. P. D. 324) between "inherent want of juris- 
diction on account of the nature of the complaint" and "what may 
be called resulting want of jurisdiction because the facts do not 
make out the charge." His Lordship assumed that the applica- 
tion was for a summons or order under the Masters and Work- 
men's Act, an application, that is, which the magistrate would 
have had jurisdiction to grant, had the facts when investigated 
proved to warrant such a course. On that assumption, it fol- 
lows, of course, that the magistrate had jurisdiction to listen 
to the application, until the facts stated to him made it clear 
that he had no power to grant the redress applied for. But in 
the libel there is no word as to the Masters and Workmen's 
Act ; it would seem rather that the applicants were desirous of 
inverting the usual order of things, and of prosecuting their 
employer for embezzlement. No doubt in this case it was the 
duty of the magistrate to listen to the applicant until it became 
clear from what he said that the magistrate had no jurisdiction 
over the subject-matter of the complaint. But surely it is 
equally the duty of the magistrate so far to listen to every 
applicant. And an ordinary newspaper reporter can hardly be 
expected to accurately distinguish between a magistrate's 
•'inherent Avant of jurisdiction" and that which is merely 
" resulting." Lopes, J., on the other hand, takes a broader 
ground : — " The cases," he says (3 C. P. D. 329), " are clear to 
show that want of jurisdiction will not take away the privilege, 
if is maintainable on other grounds." (BucJdey v. Wood, 4 
Rep. 146; Cro. Eliz. 230 ; Lal-e v. King, 1 Saund. 131; Fair- 
man V. Ives, 5 B. & Aid. 642.) I think we may conclude that 
newspapers may safely report in future everything that takes 
place in open court, even though the magistrate should prove to 
have no jurisdiction. 

It is not clear, however, that the case of Usill v. Hales 
disposes of the first distinction taken in Duncan v. Thwaites, 
3 B. & C. 556, that a fair report of a magistrate's decision is 
privileged Avheu it finally disposes of the matter of the applica- 
tion, but is not privileged where the inquiry is but a pre- 
liminary one, and the prisoner is committed to take his trial 
at the Assizes or the Central Criminal Court. Lord Campbell 
in Lewis v. Levy, E. B. & E. 561 ; 27 L. J. (Q B.) 290, appears 
anxious not to overrule Duncan v. Thwaites, on this point at 



246 QUALIFIED PRIVILEGE. 

all events : for lie is careful to lay down the rule that the 
privilege attaching to fair and correct reports of proceedings 
taking place in a public Court of Justice, " extends to proceed- 
ings taking place publicly before a magistrate on the preliminary 
investigation of a criminal charge ieritninaiinf) in the discharge 
by the magistrate of the party charged." In Usill and Hales 
the matter was finally disj)osed of by the magistrate ; it was 
unnecessary therefore for the Court to decide the point. But 
the whole spirit of the decision is against this time-honoured 
distinction. Lord Coleridge frankly admits (p. 325) : — " I do 
not doubt for my own part that if this argument had been 
addressed to a Court some sixty or seventy years ago, it might 
have met with a different result from that which it is about to 
meet with to-day." And then after referring to R. v. Fleet, 
1 B. & Aid. 379, and Duncan v. Thwaites, the learned Judge 
continues : — " But we are not now living, so to say, within the 
shadow of those cases." And his Lordship quotes a passage 
from the judgment of the Court of Queen's Bench, in the case 
of Wason v. Walter, L. R. 4 Q. B. 93, as "a passage which upon 
the Avhole I should desire to adopt and adhere to : — ' Whatever 
disadvantages attach to a system of imwritten law, — and of 
these w^e are fully sensible, — it has at least this advantage, that 
its elasticity enables those who administer it to adapt it to the 
varying conditions of society and to the requirements and habits 
of the age in wdiich we live, so as to avoid the inconveniences 
and injustice which arise where the law is no longer in harmony 
with the wants and usages and interests of the generation to 
which it is immediately applied. Our law of libel has in many 
respects only gradually developed itself into anything like 
satisfactory and settled form. The full liberty of public writers 
to comment on the conduct and motives of public men has 

only in very recent times been recognised Even in 

quite recent days judges, in holding the publication of the pro- 
ceedings of Courts of Justice lawful, have thought it necessary 
to distinguish what we call ex 'parte proceedings as a probable 
exception from the operation of the rule. Yet ex parte pro- 
ceedings before magistrates, and even loefore this Court, as, for 
instance, on applications for criminal informations, are published 
every day ; but such a thing as an action or indictment founded 
on a report of such an ex parte proceeding is unheard of ; and 



REPORTS OF TRIALS. 247 

if any such action or indictment should be brought, it would 
probably be held that the true criterion of the privilege is not 
whether the report was or was not ex "parte, but whether it was 
a fair and honest report of what had taken place, published 
simply with a view to the information of the public, and 
innocent of all intention to do injury to the reputation of the 
party affected." (L. K. 4 Q. B. 94 : 3 C P. D. 326.) Applying 
a similar argument, we know that reports of all proceedings 
before magistrates are published daily with impunity, whether 
such proceedings are finally disposed of by the magistrate, or 
whether the case is hereafter to come before a jury. Lopes, J., 
intimates that he thinks it doubtful how far the old authorities 
on this point might be followed in the present day (3 C. P. D. 
329), I think, therefore, that if it is not already the law, it soon 
will be the law, that a newspaper reporter may report everything 
that occurs publicly in open court without fear of any action, pro- 
vided only that his reports are fair and accurate, and not inter- 
spersed with comments of his own. " The law upon such a 
subject must bend to the approved usages of society, though still 
resting upon the same principle, that what is hurtful and indicates 
malice should be punished, and that what is beneficial and bond 
fide should be protected." {Per Lord Campbell, C. J., in Lewis v. 
Levy, E. B. & E. 560; 27 L. J. Q. B. 282 ; 4 Jur. N. S. 970.) 

Illustrations. 

The following passage appeared in tlie the Daily Ncivs, the Standard, &\\A 
the Mornincj Advertiser, o\\ the same morning:- — "Three gentlemen, civil 
engineers, were among the applicants to the magistrate yesterday, and they 
applied for criminal process against Mr. Usill, a civil engineer, of Great 
Queen Street, Westminster. The spokesman stated that they had been 
engaged in the survey of an Irish railway by Mr. Usill, and had not been 
paid what they had earned in their various capacities, although from time 
to time they had received small sums on account ; and, as the pei^son 
complained of had been paid, they considered that he had been guilty of a 
criminal offence in withholding their money. Mr. Woolrych said it was a 
matter of contract between the parties ; and, although on the face of the 
application, they had been badly treated, he must refer them to the County 
Court. Mr. Usill thereupon brought an action against the proprietor of 
each newspaper. The three actions were tried together beibre Cockburn, C. J., 
at Westminster, on Noveml)er 15th, 1877. Tlie learjied judge told the jury 
that the only (]uestion for their consideraticjn was whether or not the publica- 
tion complained of was a fair and impartial report of Avhat took place before 



248 QUALIFIED PRIVILEGE. 

the magistrate ; and that, if they found that it was so, the publication was 
jtrivileged. The jury found that it was a fair report of what occurred, 
and accordingly returned a A'erdict for the defendant in each case. HeM 
that the report Avas privileged, although the proceedings Avere ex parte, 
and although the magistrate decided that he had no jurisdiction over the 
matter. 

Usill V. Hales | 3 q p j) 3^9 ^- l. J. C. P. 323 ; 26 W. E. 
UsMy.Brearley]^ 37^ . 33 l. t. 63. 
Usill V. Clarke ' ' 

See McGregor v. Thwaites, 3 B. & C. 24. 
Where judicial proceedings last more than one day, and their publication 
is not expressly forbidden by the Court, a report published in a newspaper 
every morning of the proceedings of the preceding day, is privileged, if 
fair and accurate ; but all comment on the case must be suspended till the 
proceedings terminate. 

Leivis V. Lcvif, E. B. & E. 537 ; 27 L. J. Q. B. 282 ; 4 Jur. N. S. 
970. 
A rejiort of proceedings before a judge at chambers on an application 
under 5 «& 6 Vict. c. 122, s. 42, to discharge a bankrupt out of custody, is 
privileged. 

Smith V. Scoff, 2 C. & K. 580. 
Proceedings held in gaol before a registrar in bankruptcy, under the 
Bankruptcy Act, 1861, ss. 101, 102, upon the examination of a debtor in 
custody, are judicial and in a public Court. A fair report, therefore, of 
those proceedings is protected. 

EyaUs v. Leader and others, L. R. 1 Ex. 296 ; 12 Jur. N. S. 503 ; 

4 H. & C. 555 ; 35 L. J. Ex. 185 ; 14 W. R. 838 ; 14 L. T. 

563. 

A fair and accurate report of proceedings before the examiners appointed 

under 9 Geo. IV. c. 22, s. 7, to inf|uire into the sufficiency of the sureties 

olfered on the trial of an election petition, was held privileged. 

Cooper v. Lcmson, 8 A. & E. 746 ; 1 W. W. k H. 601 ; 2 Jur. 
919 ; 1 P. & D. 15. 
The defendants presented a petition in the Croydon County Coui-t to adjudi- 
cate the plaintiff a bankrupt ; and to set aside a bill of sale which they alleged 
to be fraudulent. The County Court judge did not hear the case in open 
Cotirt, but in his own room ; the public, however, could walk in and out 
of the room at their pleasure during the hearing. Held, by Cockburn, C. J., 
at Nisi Prius that a fair report of what took place before the County Court 
judge in his room -was prima facie privileged. 

Myers v. Defries, Times, July 23rd, 1877. 
In Scotland there exists a public register of protested bills of exchange, 
established by statute, and the registration of such protests has by statute 
the effect of a " decreet," or final judgment of the Court of Session. The 
contents of this register being public property, the defendant published an 
accurate transcript thereof for the benefit of merchants. This was held 
privileged, as being but a list of judgments of the Court. 
Fleming \. Xcuion, 1 H. L. C. 363. 



PROHIBITED REPORTS. 249 

But where the publisher of such a "Black List" left in it, as a still 
existing liability, a judgment which had been annulled and satisfied by- 
payment, the Irish Court of Queen's Bench held that this inaccuracy de- 
stroyed all privilege. 

McNally v. Oldham, 16 Ir. C. L. E. 298 ; 8 L. T. 604. 

And see Jones v. McGovern, Ir. R. 1 C. L. 681. 

Cosgrave v. Trade Auxiliary Co., Ir. R. 8 C. L. 349. 

There are however two cases in which reports of jufli- 
cial proceedings, although fair and acciu-ate, are not 
privileged, and arc indeed illegal. 

(i.) The fii'st is where the Coui't has itself prohibited 
the publication, as it fi-equently did in former days. 
'' Every court has the power of preventing the publica- 
tion of its proceedings pending litigation." [Per Turner, 
L. J., in Brook v. Evans, 29 L. J. Ch. G16 ; 6 Jm\ N. S. 
1025; 8 W. E. 688.) But such a prolubition now is 
rare (and see Lev7j v. Lmvson, E. B. & E. 500 ; 27 L. J. 
Q. B. 282.) 

(ii.) The second is where the subject-matter of the 
trial is an obscene or blasphemous libel, or where for any 
other reason the proceedings are unfit for publication. 
It is not justifiable to publish even a fair and accurate 
report of such proceedings : for such report may itself 
be indictable as a criminal libel. 

Illustrations. 

On the trial of Thistlewood and others for treason, in 1820, Abbott, C.J. 
announced in open court that he prohibited the jrablication of any of the 
proceedings until the trial of all the prisoners should be concluded. In 
spite of this prohibition, the Observer published a report of the trial of the 
first two prisoners tiled. The proprietor of the Observer was summoned 
for the contempt, and failing to appear, was fined £500. 
It. V. Clement, 4 B. & Aid. 218. 

Richard Carlile on his trial read over to the jury tlie wdiole of Paine's 
" Age of Reason " for selling which he was indicted. After his conviction, 
his wife published a full, true, and accurate account of Jiis trial, entitled 
"The Mock Trial of Mr. Carlile," and in so doing republished (he whole of 
the "Age of Reason" as a part of the proceedings at the trial. Held that 
the privilege usually attaching to fair reports of judicial proceedings did 



2 so QUALIFIED PRIVILEGE. 

not extend to sucli a colourable reproduction of a blasphemous book ; and 
tliat it is unlawful to publish even a correct account of the proceedings in 
a court of justice, if such an account contain matter of a scandalous, blas- 
phemous, or indecent nature. 

E. V. Mary Carlile (1819), 3 B. & x\ld. 167. See also the remarks 
of Bayley, J., in 

B. V. Creevey, 1 M. & S. 281. 
The Protestant Electoral Union published a book, called " The Confes- 
sional Unmasked," intended to show the pernicious influence exercised by 
Roman Catholic priests in the confessional over the minds and consciences 
of the laity. This was condemned as obscene in E. v. Hicklin, L. R. 3 Q. B. 
360 ; 37 L. J. I\r. C. 89 ; 16 W. R. 801 ; 18 L. T. 395 ; 11 Cox, C. C. 19. 
The Union thereupon issued an expurgated edition, for selling which one 
George Mackey was tried at the Winchester Quarter Sessions on Oct. 19th, 
1870, when the jury, being unable to agree as to the obscenity of the book 
were discharged without giving any verdict. The Union thereupon pub- 
lished " A Report of the Trial of George Mackey," in which they set out 
the full text of the second edition of " The Confessional Unmasked ; ' 
although it had not been read in open court, but only taken as read, and 
certain passages in it referred to. A police magistrate thereupon ordered 
all copies of this " Report of the Trial of George Mackey " to be seized and 
destroyed as obscene books. Held that his decision was correct. 

Steele v. Brannan, L. R. 7 C. P. 261 ; 41 L. J. M. C. 85 ; 20 
W. R. 607 ; 26 L. T. 509. 

The rej)ort must be an impartial and acciu'ate account 
of what really occurred at the trial ; else no privilege 
will attach. It is the duty of the judge to exclude 
irrelevant evidence ; if therefore such evidence be given 
in court and appear in the report, this is not the fault of 
the reporter. [Rtjalls v. Leader., L. E. 1 Ex. 300 ; 35 
L. J. Ex. 185 ; 14 W. R. 838 ; 12 Jur. IS". S. 503; 14 L. T. 
563.) The sworn evidence of the witnesses should be 
relied on, rather than the speeches of advocates. Coun- 
sel are fi*equently instructed to open to the jui-y facts 
which they fail to prove in evidence. If such an unsub- 
stantiated statement be reported at all, the reporter 
should add, "but this the plaintiff failed to prove:" 
but it would be better to avoid all allusion to the matter. 
Especial care should be taken to report accuratel}^ the 
summing up of the learned judge, especially if the case 
be of more than transitory interest. In many cases a 



FAIR ABSTRACT. 251 

report has escaped the charge of partiality on the ground 
that it contained an accurate report of the judge's sum- 
ming up of the case to the jury. [Milissich v. Lloyds^ 
46 L. J. C. P. 404; 36 L. T. 423; Chalmers v. Payne, 
2 C. M. & E. 156 ; 5 Tyrw. 766 ; 1 Gale, 69.) 

Of coiu'se the report need not be verbatim; it may be 
abridged or condensed; but it must not be partial or 
garbled. It need not state all that occurred in extenso ; 
but if it omit any fact which would have told in the plain- 
tiff 's favour, it will be a question for the jury whether 
the omission is material. Thus the entire suj)pression of 
the evidence of one witness may render the report unfaii". 
[Duncan v. Thivaites, 3 B. & C. 580.) But a report will 
be privileged if it is " stihstaiitially a, iaiv accoimt of what 
took place" in court. (Per Lord Campbell, C. J., in 
Andrews v. Chapman^ 3 C. & K. 289.) " It is sufficient 
to publish a fail- abstract." [Per Mellish, L. J"., in 
Milissich v. Lloyds, 46 L. J. C. P. 405 ; Per Byles, J., 
in Turner v. Sidlivan and others, 6 L. T. 130.) 

The privilege is not confined to reports in a newspaper 
or law magazine. It attaches equally to fair and accu- 
rate reports issued for any lawful reason in pamphlet 
form or in any other fashion. Though of course if 
there be any other evidence of malice, the mode and 
extent of publication will be taken into consideration 
with such other evidence on that issue. [Milissich v. 
Lloyds, 46 L. J. C. P. 404; Salmon v. Lsaac, 20 L. T. 885.) 

Nor does it matter by whom the report is published ; 
the privilege is the same, as a matter of law, for a private 
individual as for a newspaper. [Per Brett, L.J., 46 L. J. 
C. P. 407.) "I do not think the public press has any 
peculiar privilege." [Per Bramwell, LJ., 5 Ex. D. bQ.) 

If a publication purports to be a report of a trial, it 
A\ill, it seems, be assumed in favour of the defendant 
that such a trial really took place : unless the plaintiff 



252 QUALIFIED PRIVILEGE. 

adduces some evidence to the contrary. " We cannot 
suppose, without proof, that the occiuTence of such a 
trial was mere invention, or that newspapers publish 
reports of merely imaginary trials." {Per Alderson, B., 
in Chalmers v. Fcujne, 5 Tyrw. 7G9 ; 2 C. M. & E. 159 ; 
1 Gale, 69.) 

Where the report is clearly absolutely fair and there 
is no suggestion of malice, the judge should stop the 
case and direct a verdict for the defendant : e.g. where 
the report is verhatim or nearly so ; or corresponds in 
all material j)articulars with a report taken by an impar- 
tial shorthand wi'iter. [Per Brett, L.J., in MiUssich v. 
Llofjds, 46 L. J. C. P. 407.) But if anything be omitted 
in the report which could make any appreciable dif- 
ference in the plaintiff's favour, or anything erroneously 
inserted which could conceivably tell against him, then 
it is a question for the jury whether such deviations 
from absolute accuracy make the report unfair' ; and the 
judge at Nisi Prius should not direct a verdict for either 
party. [Risk Allah Bey v. Whitehurst and others, 18 
L. T. 615 ; street v. Licensed Victuallers Societf/.^ 22 
W. R. 553.) The jury in considering the question 
should not dwell too much on isolated passages : they 
should consider the report as a whole. They should ask 
themselves what impression would be made on the mind 
of an unprejudiced reader who reads the report straight 
through, knowing nothing about the case beforehand. 
Slight errors may easily occui-j and if such errors do not 
substantially alter the impression of the matter which 
the ordinary reader would receive, the jury should find 
for the defendant. If however there is a substantial 
misstatement of any material fact, and such misstatement 
is prejudicial to the reputation of the plaintiff, then 
the report is unfair and inaccurate, and the jury should 
find for the plaintiff. 



INACCURACIES. 



Illustrations. 



253 



111 a former action for libel brought by the plaintiff, the then defendant 
had justified. The report of tliis trial set out the libel in full, and gave 
the evidence for the defendant on the justification, concluding however by 
stating that the plaintiff had a verdict for £30. The jury, under the direc- 
tion of Lord Abinger, took the "bane" and the "antidote" together and 
foun.I a verdict for the defendant, on the ground that the report when 
taken altogether was not injurious to the plaintiff. And the Court refused 
a rule for a new trial. 

Chalmers v. Paijne, 5 Tyrw. 766 ; 1 Gale, 69 ; 2 C. M. & R. 156. 

IHcas V. Lmvson, ib. 
The plaintiff and M. were convicted of a conspiracy to extort money 
from B. ; the report of the trial stated that the plaintiff had written 
a particular letter, which the plaintiff contended had not in fact been 
written by him, but by his fellow-conspirator, M. Held, that as the jury 
had convicted them of a common purpose, and the letter was wi'itten in 
furtherance of that common purpose and set out in the indictment as an 
overt act of the conspiracy, it made no difference which of the two wrote 
it : and that the error, if error it were, was immaterial. 

Stockdale v. Tarte and others, 4 A. & E. 1016. 

Alexander v. N. E. E. Co., 6 B. & S. 340 ; 34 L. J. Q. B. 152 ; 
13 W. R. 651 ; 11 Jur. N. S. 619. 
A barrister, editing a book on the Law of Attorneys, referred to a case. 
Re Blake, reported in 30 L, J. Q. B. 32, and stated that Mr. Blake was 
struck off the rolls for misconduct. He was in fact only suspended for 
two years, as appeared from the Law Journal report. The publishers were 
held liable for this carelessness, although of course neither they nor the 
writer bore Mr. Blake any malice. Damages £100. 

Blake v. Stevens and others, 4 F. & F. 232 ; 11 L. T. 543. 

Gwynn v. S. E. R. Co., 18 L. T. 738. 

Biggs v. G. E. R. Co., 16 W. R. 908 ; 18 L. T. 482. 

R. V. Lofeild, 2 Barnard, 128. 
Where the report of a trial gave none of the evidence, but only an 
abridgment of the speeches of counsel, and the defendant pleaded that it 
was still, ill substance, a true report of the trial ; such plea was held bad 
on demurrer. 

Flint V. Pike, 4 B. & Cr. "473 ; 6 D. & R. 528. 

Kane v. Mulvany, Ir. R. 2 C. L. 402. 
A report is not privileged which does not give the evidence, but merely 
sets out the circumstances "as stated by the counsel" for one party. 

Saunders v. Mills, 6 Bing. 213 ; 3 M. & P. 520. 

Woodgate v. Ridoat, 4 F. & F. 202. 
Still less will it be privileged, if after so stating tlie case the only 
account given of the evidence, is that the witnesses "proved all that had 
been stated by the counsel for the prosecution." 

Lewis V. JFalter, 4 B. & Aid. G05. 



254 QUALIFIED PRIVILEGE. 

Where a report in the Times of a preliminary investigation before a 
magistrate set out at length the opening of the counsel for the prosecu- 
tion, but entirely omitted the examination and cross-examination of the 
prosecutor, tlie only witness, merely saying that " his testimony sup- 
ported the statement of his counsel," the jury found a verdict for the 
plaintiff. Damages £lO. 

Pinero v. Goodlake, 15 L. T. 676. 

[X.B. — The lieadnote to this case is strangely misleading ; the pro- 
ceedings were not ex parte ; the defendant, himself a solicitor, was present 
and cross-examined the witnesses. The important monosyllable " no " ap- 
pears to be omitted in the report of the argument of Coleridge, Q.C. p. 677.] 

Where the report of a criminal trial gave the speech for the prosecu- 
tion, a brief resume of the sjieech of the prisoner's counsel, who called 
no witnesses, and the whole of the Lord Cliief Baron's summing up in 
exfenso ; but it did not give the evidence except in so far as it was 
detailed in the judge's summing up ; Lord Coleridge, C.J., held the 
report necessarily unfair because incomplete, and refused to leave the 
cpiestion of fairness to the jury. But the Court of Appeal held that he 
was wrong in so doing ; that it is sufficient to publish a fair abstract of 
the trial, and that the judge's summing up was presumably such an 
abstract ; that the question of fairness must be left to the jury, and that 
therefore there must be a new trial. 

Milissich v. Lloyds (C. A.), 46 L. J. C. P. 404 ; 36 L. T. 423 ; 
13 Cox, C. C. 575. 

No privilege attaches to the report of unsworn statements made by a 
bystander at an inquest. 

Lynam v. Goicing, 6 L. E. Ir. 259. 



The reporter nmst add nothing of his own. He must 
not state his opinion of the conduct of the parties, or 
impute motives therefor : above all he must not insinuate 
that a particular witness committed perjmy. Tliis is not 
a report of what occurred ; it is the comment of the ^viiter 
on what occurred, and to this no privilege attaches. 
Often no doubt such comments may be justified on 
another ground, that they are fair and honci fide criticism 
on a matter of public interest and are therefore not libel- 
lous. (See r«z/t', c. II. pp. 4:4 — 40.) But such observations, 
to Avhich quite different considerations apply, should not 
be mixed up with the history of the case. '' If any 
comments are made, they should not be made as part of 
the report. The report should be confined to what takes 



NO COMMENTS. 255 



place in court, and tlie two things, report and comment, 
should be kept separate." i^Per Ld. Campbell, C. J., in 
Andrews v. Chapman^ 3 C. & K. 288.) And all sensa- 
tional headings to reports should be avoided. 



Illustrations. 

The captain of a vessel was charged before a magistrate with an indecent 
assault upon a lady on board his own ship. The di^fendant's newspaper 
puldished a report of the case, interspersed with comments wliich assumed 
the guilt of the captain, commended the conduct of the lady and generally 
tended to inflame the minds of the public violently against the accused. 
Held that no privilege attached to such comments and that the report was 
neither fair nor dispassionate. 

It. V. Fisher and others, 2 Camp. 563. 

And see R. v. Lee, 5 Esp. 123. 

R. V. Fleet, 1 B. & Aid. 37.9. 
It is libellous to publish a highly-coloured account of criminal proceed- 
ings, mixed with the reporter's own observations and conclusions upon 
what passed in court, headed " Judicial Delinquency," and containing an 
insinuation that the plaintiff (''our hero") had committed perjury : and it 
is no justification to pick out such parts of the libel as contain an account 
of the trial, and to plead that such parts are true and accurate, leaving the 
extraneous matter altogether unjustified. 

Stiles v. Nokes, 7 East, 493 ; same case sub nomine Carr v. Jones, 
3 Smith, 491. 
The report of a trial set out the speech for the counsel for the prosecu- 
tion, and then added : — " The first witness was E. P., who proved all that 
had been stated by the counsel for the prosecution : " but owing to the 
absence of a piece of formal evidence in no way bearing on the merits of 
the case, " the jury, under the direction of the learned judge, were 
obliged to give a verdict of acquittal, to the great regret of a crowded 
court, on whom the statement and the evidence, so far as it went, made 
a strong impression of their guilt." Held that no privilege applied. 

Leiuis V. Walter, 4 B. & Aid. 605. 

Roberts v. Brown, 10 Bing. 519 ; 4 Moo. & Sc. 407. 
On an examination into the sufficiency of sureties on an election peti- 
tion, under 9 Geo. IV. c. 22, s. 7, affidavits were put in to show that one 
of them (the plaintiff) was embarrassed in his affairs, and an insufficient 
surety. A newspaper report of the examination proceeded to ask why 
the plaintiff being wholly unconnected with the borough should take so 
much trouble about the matter. " There can be but one answer to these 
very natural and reasonable queries, he is hired for the occasion." Held 
that this question and answer formed no part of the report ; and therefore 
enjoyed no privilege ; and that it was propurly left to the jury to say 



256 QUALIFIED PRIVILEGE. 

whether they were a fair and hona fide comment on a matter of public 
iuteredt in that borough. Verdict for the phiintitf. Damages £100. 

Cooper V. Lawson, 8 A. & E. 74G ; 1 W. W. & II. 601 ; 2 Jur. 

919 ; i P. & D. 15. 

The Observer gave a true and faithfiil account of some proceedings in the 

Insolvent Debtors Court, but headed it with the words " Shameful conduct 

of an attorney." Held that for those words, as they were not justified, the 

plaintiff was entitled to recover. 

Clement v. Lems, (Exch. Ch.), 3 Br. & B. 297 ; 3 B. & Aid. 702 ; 

7 Moore, 200. 
Bishop V. Latimer, 4 L. T. 775. 
A i^aragraph was headed " An lionest lawyer," and stated that the 
plaintiff had been reprimanded by one of the Masters of the Queen's 
Bencli, " for what is called sharp practice in his profession." Held 
libellous. 

Boydell v. Jones, 4 M. & W. 446 ; 1 H. & H. 408 ; 7 Dowl. 210. 
Fli7it V. Pike, 4 B. & C. 473 ; 6 D. & E. 528. 
A report of the hearing of a charge of perjury before a magistrate, was 
headed " Wilful and Corrupt Perjury," and stated that the " evidence before 
the magistrate entirely negatived the story of the" plaintiff. The jury found 
a verdict for the defendant on the ground that it was a fair and correct 
report of what occurred at the hearing. But the Court set aside the 
verdict on this count, and entered a verdict for the plaintiff, with nominal 
damages. 

Leivis V. Levy, E. B. & E. 537 ; 27 L. J. Q. B. 282 ; 4 Jur. N. S. 
970, 



Tlic privilege attaching to fair and acciu-ate reports 
may of course be rebutted by proof of actual malice. 
Eeports of judicial ju'oceedings are not absolutely privi- 
leged, by whomsoever published. [Stevens v. Sampson, 
5 Exch. D. 53.) But it is of course very difficult to 
prove that an ordinary newspaper reporter has been 
actuated by express malice : whereas if one of the parties 
to a cause or his solicitor sent the report, this unusual 
conduct alone would be some evidence of malice, and the 
jury would start with a presumption that the report was 
biassed and unfair. [See the remarks of Wood, Y.-C, 
in Coleman v. West Hartlepool Harbour J)- Eaihvay C/j.., 
2 L. T. 7GG ; 8 W. E. 734.) 

In these cases there are in fact two distinct questions for the 



\ 



MALICIOUS REPORTS. 257 

jury, (i.) Is the report fair and accurate ? If so, it is prima 
facie privileged ; if not verdict for the plaintiff, (ii.) Was the 
report, though fair and accurate, published maliciously ? Was 
it published solely to afford information to the public and for 
the benefit of society without any reference to the individuals 
concerned ; or was it published with the malicious intention of 
injuring the reputation of the plaintiff? This second question 
of course only arises when the first has been already answered 
in the affirmative. 

Illustrations. 

A churclivvarden obtained a writ of proliibitiou against the Bishop of 
Cliichester on an affidavit wliich faisely stated the facts. He immediately- 
had the writ translated into English, and dispersed 2000 copies of such 
translation all over the kingdom with a title-page alleging that by such 
writ " the illegality of oaths is declared," which was not the case. Held, " a 
most seditious lil)el." 

JVaterfield v. Bishop of Chichester, 2 Mod. 118. 
In a County Court action, Nettkfold v. Fulcher, the defendant, a solicitor, 
appeared for Nettlefold, and commented severely on the conduct of the 
plaintiff, who was Fulcher's agent and debt collector. The defendant sent to 
the local newspapers a report of the case, which the jury found " was iu sub- 
stance a fair report ; " but they also found that " it was sent with a certain 
amount of malice." Verdict for the plaintiff. Damages, 405. On appeal, it 
was argued tliat the defendant was entitled to judgment on the first finding 
of the jury, and that the motive which the defendant had in sending the 
report was immaterial. But the Court of Appeal held that Cockburn, C.J . 
was right in directing judgment to be entered for the plaintiff. 

Stevens v. Sampson, 5 E.x. D. 53 ; 49 L. J. Q. B. 120 ; 28 W. R. 
87 ; 41 L. T. 782. 
Where the Court of Directors resolved to dismiss the plaintiff, one of 
their officers, for misconduct, and the defendant, the Governor in Council 
of Fort St. George, published this sentence of dismissal, it was held that no 
action lay, if it was part of the defendant's official duty so to publish it. 
Oliver v. Lord Wm. Bentinck, 3 Taunt. 456. 
See Grant v. Secretary of State for India, 2 C. P. D. 445 ; 25 W. 
R. 848 ; 37 L. T. 188, a7ite, p. 196. 



(ii.) liejjorts of Furllamentary Proceedinf/s. 

Every fair and accurate report of aiiy proceeding in 
either House of Parliatnent or in any committee thereof, 
is privileged, even though it contain matter defamatory 
of an individual. 



258 QUALIFIED PRIVILEGE. 

The analogy between such rejDorts and those of legal 
proceedings is complete. Whatever Avould deprive a 
report of a trial of immunity, will equally deprive a 
rej^ort of parliamentary proceedings of all privilege. 

There was for a long time great doubt on this subject, but 
the law is now clearly and most satisfactorily settled by the 
decision in Wason v. Walter, L. R. 4 Q. B. 73 ; 38 L. J. Q. B. 
84 ; 17 W. R. 169; 19 L. T. 409. Such doubt was caused by 
the fact that there were standing orders of both Houses of Parha- 
ment prohibiting such publications ; and it was argued with 
some force that no privilege could attach to any report which 
was published in contravention of such standing orders, and 
was therefore in itself a contempt of the House. We have 
seen (ante, p. 249) that when a learned judge expressly pro- 
hibits the publication of the jDroceedings before him, any report 
of them is a contempt and wholly unprivileged. (R. v. Clement, 
4 B. & Aid. 218). And the earliest reports of parliamentary pro- 
ceedings were only published in fear and trembling as "Debates 
in the Senate of Lilliput," with the names of the speakers 
disguised. And even for such reports Cave, the editor of the 
Gentleman's Magazine, was cited before the House of Lords 
for breach of privilege (April, 1747) ; and Johnson's pen ceased 
to indite ponderous speeches for "Whig dogs." But in 1749, 
Cave began again, and his reports now took the form of letters 
from an M.P. to a friend in the country. After 1752 they were 
avowedly printed as reports ; but still only the initials of the 
speakers were given. As late as 1801 the printer and publisher 
of the Mornhig Herald were committed to the custody of 
Black Rod, for publishing an account of a debate in the House 
of Lords ; but then such account was expressly declared to be 
" a scandalous misrepresentation " of what had really occurred. 
And now such standing orders are quite obsolete. Within the 
last four or five years the House of Commons has modified its 
rules as to the presence of " strangers : " while the House of 
Lords has appointed a commission to increase the facilities 
given to reporters, and this' commission has actually suggested 
the removal of the woolsack to the other end of the House so 
as to enable their Lordships to be more distinctly heard. 



PARLIAMENTARY REPORTS. 259 

A speech made by a member of Parliament in the 
House is of course absohitel^y priA^ileged. If he subse- 
quently causes his speech to be printed, and circulates it 
privately among his constituents, bond fide for their 
information on any matter of general or local interest, a 
cj[ualified privilege would attach to such report ; [in spite 
of an obsolete order of the House of Commons forbidding 
such publication, passed in 1641, and still a standing 
order of the House ; 2 Commons' Journal, 209]. (Per Ld. 
Campbell, C. J., and Crompton, J., in Davison v. Duncan, 
7 E. & B. 233 ; 26 L. J. Q. B. 107 ; and Cockburn, C. J., 
in Wason v. Walter, L. E. 4 Q. B. 95 ; 38 L. J. Q. B. 42 ; 
19 L. T. 416.) But if a member of parliament publishes 
his speech to all the Avorld with the malicious intention 
of injuring the plaintiff, he will be liable both civilly and 
criminally. (R. v. Lord Ahingdon, 1 Esp. 226 ; R. v. 
Crceveij, 1 M. & S. 273.) 

Illustrations. 

The defendant pnblislied tlie report of a select committee of the Honse of 
Commons which contained a paragraph charging an individual with holding 
views liostile to the government. But the Court refused to grant a criminal 
information on the express ground that the publication was a true copy of a 
liroceeding in parliament. 

B. V. Wright (1799), 8 T. R. 293. 
The plaintiff induced Earl Piussell to present a petition to the House of 
Lords charging a high judicial officer with having suppressed evidence 
before an election committee some thirty years previously. The charge was 
shown to be wholly unfounded, and the conduct of the plaintiff in present- 
ing such a petition was severely commented on liy the Earl of Derby and 
others in the debate which followed. The plaintiff sued the proprietor of 
the Times for reporting this deliate. Cockburn, C.J., directed tlie jury that 
if they were satisfied that the report was faithful and correct, it was in 
point of law a privileged comnuuiication ; and the Court of Queen's Bench 
subsequently discharged a rule nisi which had Ijeen obtained fur a new 
trial on the groirnd of misdirection. 

JFason v. Walter, L. R. 4 Q. B. 73 ; 8 B. & S. C7l ; 38 L. J. Q. 
B. 34 ; 17 W. R. 169 ; 19 L. T. 409. 
The proceedings of any Committee of the House of Lords may be reported 
and commented on. 

Kane v. Mulvany, Ir. L. R. 2 C. L. 402. 

s 2 



26o QUALIFIED PRIVILEGE. 



(iii.) Oilier Reports. 

No other reports are privileged. If any one pnblishes 
an account of the proceedings of any meeting of a town- 
council, board of guardians, or yestry, of the share- 
holders in any company, of the subscribers to any 
charity, or of any public meeting, political or otherwise ; 
and such account contains exj)ressions defamatory of the 
plaintiff; the fact that it is a fair and accm-nte report 
of Avhat actually occuiTcd will not avail as a defence, 
though it may be urged in mitigation of damages. By 
printing and publishing the statements of the various 
speakers, he has made them his own ; and must either . 
justify and prove them strictly true, (c. YII.) or he may 
rely upon their being fail- and bond fide comments on a 
matter of public interest. 

Illustrai'ions. 

The defendants, the printers and publishers of the Manchester Courier, 
published in their paper a report of the proceedings at a meeting of the 
Board of Guardians for the Altrinchaui Poor Law Union, at which ex j^arte 
charges were made against the medical officer of the union workhouse at 
Knutsford, of neglecting to attend the pauper patients when sent for. Held, 
that the matter was one of public interest ; but that the report was not 
privileged by the occasion, although it was admitted to be a bona fide and 
a correct account of what passed at the meeting; and the plaintiff recovered 
40s. damages and costs. 

Purcell V. Solder, 1 C. P. D. 781 ; 2 C. P. D. 215 ; 46 L. J. C. P. 
308; 25 W. R. 362 ; 36 L. T. 416. 
A public meeting was called for the purpose of petitioning Parliament 
against the grant to the Roman Catholic College at Maynooth. The 
defendant made a telling speech at such meeting commenting severely on 
penances and other portions of the discipline of the Roman Catholic 
Church. Had the words been defamatory of the plaintiff", the Court held 
that they would not have been privileged, although the object of the meet- 
ing was legal, and the defendant's speech was pertinent to the occasion. 

Henrne v. Stou-ell, 12 A. & E. 719 ; 4 P. & D. 690 ; 6 Jur. 458 ; 

ante, p. 127. 
See Pierce v. Ellis, 6 Ir. C. L. R. 55. 
At a meeting of the West Hartlepool Improvement Commissioners, one 



NEWSPAPER REPORTS. 261 

of the Commissioners made some defamatory remarks as to the conduct of 
the former secretary of the Bishop of Durham in procuring from the Bishop a 
licence for the chaplain of the West Hartlepool Cemetery. These remarks 
were reported in the local newspaper, and the secretary brought an action 
against the owTier of the newspaper for libel. A plea of justification alleging 
that such remarks were in fact made at a public meeting of the commis- 
sioners, and that the alleged libel was an impartial and accurate report of 
wliat took place at such meeting, was held bad on demurrer. 

Davison v. Duncan, 7 E. & B. 229 ; 26 L. J. Q. B. 104; 3 Jur. 

N. S. 613 ; 5 W. E. 253 ; 28 L. T. (O. S.) 265. 

So also a newspaper j^roprietor will be held liable for publishing a report 

made to the vestry by their medical officer of health, even although the 

vestry are required by Act of Parliament sooner or later to publish such 

report themselves. 

Pophavi V. Piclcburn, 7 H. & N. 891 ; 31 L. J. Ex. 133; 8 Jur. 
N. S. 179 ; 10 W. R. 324 ; 5 L. T. 846. 

See also Charlton v. Watton, 6 C. k P. 385. 



It is considered that this rule works a hardship upon news- 
paper proprietors, who in the ordinary course of their business 
have presented to the public a full, true and impartial account 
of what really took place at a public meeting, considering no 
doubt that thereby they were merely doing their duty. The 
Scotch Law on the subject is said to be less stringent than that 
of England or Ireland. The Select Committee of the House of 
Commons appointed to inquire into the Law of Libel " after 
careful consideration, have come to the conclusion that the 
balance of convenience requires that further protection should 
be given to such reports." They "accordingly recommend that 
any report published in any newspaper of the proceedings of a 
public meeting should be privileged, if such meeting was law- 
fully convened for a lawful purpose, and was open to the public, 
and if such report was fair and accurate, and published without 
malice, and if the publication of the matter complained of was 
for the public benefit." But they "are of opinion that such 
protection should not be available as a defence in any pro- 
ceeding if the plaintiff or prosecutor can show that the de- 
fendant has refused to insert a reasonable letter, or statement 
of explanation or contradiction by or on behalf of sucli plaintiff 
or prosecutor." 

But it appears to me that no adequate reasons arc assigned 
for such a change in the law. The consequences of publishing 



262 QUALIFIED PRIVILEGE. 

ill the papers calumnies uttered at a public meeting are most 
serious. The original slander may not be actionable "per se, or 
the, communication may be privileged ; so that no action lies 
against the speaker. Moreover the meeting may have been 
thinly attended, and the audience may have known that the 
speaker was not worthy of credit. But it would be a terrible 
thing for the person defamed if such words could be printed 
and published to all the world, merely because they were 
uttered under such circumstances at such a meeting. Charges 
recklessly made in the excitement of the moment will thus be 
ditfused throughout the country, and will remain recorded in a 
permanent form against a perfectly innocent person. We 
cannot tell into whose hands a copy of that newspaper may 
come. Moreover additional imjDortauce and weight is given 
to such a calumny by its republication in the columns of a 
respectable paper. Many people will believe it merely because 
it is in print. There is in fact an immense difference between 
the injury done by such a slander and that caused by its ex- 
tended circulation by the press. See the remarks of Lord 
Campbell in Davison v. Duncan, 7 E. & B. 231 ; 26 L. J. Q. B. 
lOG ; 3 Jur. N. S. 613 ; 5 W. R. 253 ; 28 L. T. (Old S.), 265 ; 
and of Best, C.J., in De Crespigny v. Wellesley, 5 Bing. 402 — 
406, cited ante, pp. 157, 8, c. VI. 

The Select Committee appear to me, if I may venture to say 
so, to have attached too much importance to the absence of 
malice, which generally characterises such reports, and too 
little importance to the damage inflicted on the plaintiff by 
the publication. Their proviso as to the insertion of the 
plaintiff's contradiction is clearly intended to protect reports 
published bond fide or inadvertently, as distinct from those 
published maliciously. But malice is in no way essential to an 
action of libel, except in cases of qualified privilege. It is 
surely anomalous to determine the question : " Was the 
occasion such as to create a privilege for the libel ? " by refer- 
ence to the subsequent conduct of the defendant. And it is, I 
think, but a poor satisfaction to a plaintiff to allow him to 
write " a reasonable letter of contradiction." Many who read 
the report would not read the plaintiff's letter, and those who 
did would probably not believe it; they would say: "Oh, of 
course he denies it." It would be difficult too to decide what 



NEWSPAPER REPORTS. 263 

is and what is not " a veasonahle letter " under such circum- 
stances. And then the sj)eaker at the meeting, or some friend of 
his, would be sure to write a letter in reply to the plaintiff's, 
re-asserting the truth of the original charge, and probably 
adding a judicious selection of fresh accusations, and this letter 
also the editor would be bound in fairness to insert. And thus 
would arise a newspaper warfare which would only prolong and 
aggravate the mischief caused by the report. 

The existing law appears to me to afford sufficient protection 
to newspaper proprietors. They ought surely to be liable to a 
civil action, whenever they publish a report defamatory of the 
plaintiff on a matter in which the public have no interest or 
concern. The Select Committee do not desire to encourage 
any mischievous prying into the private affairs of others, for 
they add the express proviso " if the publication of the matter 
complained of was for the public benefit." If, however, the 
matter is one of public interest, then all fair and bond fide 
comments thereon are held not to be libellous, and no action 
lies. And surely if unfair and maid fide comments appear in a 
newspaper, the owner ought to be held liable for the injury 
thus done by his subordinates. In criminal proceedings, news- 
paper proprietors can avail themselves of the defences allowed 
them by Lord Campbell's act, which appear to me sufficient for 
the purpose. 



CHAPTER IX. 

MALICE. 

''In an ordinary action for a libel or for words, though 
evidence of malice may be given to increase the damages, 
it never is considered as essential, nor is there any in- 
stance of a verdict for the defendant on the ground of a 
want of malice." [Per Bayley, J., in BromageY. Prosser, 
1 C. & P. 475 ; 4 B. & C. 257 ; 6 Dowl. & E. 295 ; and 
per Mansfield, C. J., in Hargrave v. Le Breton^ 4 Burr. 
2425.) As we have seen, an accidental or inadvertent 
publication of defamatory words is ground for an action. 
Even a lunatic is liable for a libel. {^Per Kelly, C. B., 
in Mordaunt v. Mordawit, 39 L. J. Prob. & Matr. 59.) 
The Coiu-ts for this purpose look at the tendency of the 
j)ublication, not at the intention of the publisher. (Haire 
V. Wilson, 9 B. & C. 643 ; 4 Man. & Ey. 605 ; Fisher v. 
Ckmcnf, 10 B. & C. 472 ; 5 Man. & Ey. 730.) The fact 
that the jury have exj)ressly found in defendant's favoiu- 
that he had no malicious intent, shall not avail him. (Per 
Maule, J., in Wennum v. Ash, 13 C. B. 845 ; 22 L. J. 
C. P. 190; 17 Jur. 579 ; 1 C. L. E. 592 ; Ilnntleg v. 
Ward, 6 C. B. N. S. 514 ; 6 Jur. N. S. 18 ; 1 F. & F. 
552 ; BlacTchurn v. BlacJchurn, 4 Bing. 395 ; 1 M. & P. 
33, 63 ; 3 C. & P. 146 ;) for if he has in fact spoken 
words which have injured the plaintiff's reputation he 
must be taken to have intended the consequences natu- 
rally resulting therefrom. 



MALICE IN FACT. 265 

In former days this rule was not so strictly enforced in actions 
of slander as of libel ; the Courts in those days evincing a strong 
desire to discourage all actions of slander, except, perhaps, in 
cases where the words imputed a capital offence. Thus, where 
the defendant was sued for saying that he had heard that the 
plaintiff had been hanged for stealing a horse, and on the 
evidence it appeared that defendant spoke the words in genuine 
grief and sorrow at the news, Hobart, J., nonsuited the plaintiff 
on the express ground that the words were not spoken ma- 
liciously ; Crawford v. Middhton, 1 Lev. 82. And see Green- 
luood V. Frich, cited Cro. Jac. 91, ante, p. 6. Now, however, 
the absence of malice could only be given in evidence in miti- 
gation of damages ; and the question whether the defendant 
acted maliciously or not, should never be left to the jury, unless 
the occasioii be privileged. {Ha ire v. Wilson, 9 B. & C. 643 ; 
4 Man. & Ry. 605. Per Lord Denman in Baylis v. Laivrence, 
11 A. & E. 924 ; 3 P. & D. 529 ; 4 Jur. 652. Per Parke, B., 
in O'Brien v. Clement, 15 M. & W. 437.) The defendant's 
intention or motive in using the words is, in fact, immaterial. 

If I have in fact wrongfully injured another's reputation, I 
must compensate him, although I may have acted from the 
noblest motives. Just as if I break A.'s window accidentally 
in the attempt to save a child from falling down a grating, I 
am still bound in law to pay A. the value of the broken pane. 
If, then, I have defamed A. without lawful excuse, that is, on 
an occasion not privileged, malice forms no part of the issue. 
{Hooper v. Truscott, 2 Scott, 672 ; 2 Bing. N. C. 457 ; Godson 
v. Home, 1 Br. & B. 7 ; 3 Moore, 223.) 

It is true that the word " malicious " is usually inserted in 
every definition of libel or slander, that the pleader invariably 
introduces it into every statement of claim, and that the older 
cases contain many dicta to the effect that " malice " is essential 
to an action for libel or slander. But in all these cases the 
word "malice" is used in a special and technical sense; it 
denotes '^ the absence of laivful excuse;" in fact, to say that 
defamatory words are malicious in that sense means simply that 
they are unprivileged, not employed under circumstances which 
excuse them. But I have dropped this technical and fictitious 
use of the word altogether — a use which has been termed an 
"unfortunate" one by learned judges. (See 41 L. T. 590.) I 



266 MALICE. 

use tlie word malice in the popular and ordinary sense of the 
word ; i.e., to denote some ill-feeling towards the plaintiff or the 
public ; some mean or crooked motive of which an honourable 
man would be ashnmed. This is called " exjjress malice" or 
" actual malice " in our older books. Using the word in this 
sense, I say that till the defendant pleads privilege, malice is 
no part of the issue. As soon as that plea is placed on the 
record, the plaintiff has to prove malice, but not before. 

But as soon as the Judge rules that the words are 
privileged by reason of the occasion on which they were 
uttered or published, then (unless, indeed, the privilege 
be absolute), the question of malice becomes all-imj)ortant. 
In the words of Lord Justice Brett in Clark v. Molpteia; 
(3 Q. B. D. 24G, 247 ; 47 L. J. Q. B. 230 ; 26 W. E. 
104 ; 37 L. T. G94 ) : — " When there has been a writing 
or a speaking of defamatory matter, and the Judge has 
held — and it is for him to decide the question— that 
although the matter is defamatory the occasion on which 
it is either written or spoken is privileged, it is necessary 
to consider how, although the occasion is privileged, yet 
the defendant is not permitted to take advantage of the 
privilege. If the occasion is privileged it is so for some 
reason, and the defendant is only entitled to the jDro- 
tection of the privilege if he uses the occasion for that 
reason. He is not entitled to the protection if he uses 
the occasion for some indii'ect and wrong motive. If he 
uses the occasion to gratify his anger or his malice, he 
uses the occasion not for the reason which makes the 
occasion privileged, but for an indii*ect and T^Tong 
motive. If the indirect and wrong motive suggested to 
take the defamatory matter out of the privilege is malice, 
then there are certain tests of malice. Malice does not 
mean malice in law, a term in pleading, but actual 
malice, that which is popularly called malice. If a man 
is proved to have stated that which he knew to be false, 



MALICE IN LAW. 267 

no ouc need inquire further. Everybody assumes tlience- 
fortli that he was malicious, that he did do a wi'ong 
tiling for some wrong motive. So if it be proved that out 
of anger, or for some other wrong motive, the defendant 
has stated as true that which he does not know to be 
true, and he has stated it whether it is true or not, reck- 
lessly, by reason of his anger or other motive, the jury 
may infer that he used the occasion, not for the reason 
which justifies it, but for the gratification of his anger 
or other indu-ect motive. The judgment of Bayley, J., 
in Bromagc v. Prosscr^ 4 B. & C, at p. 255, treats of 
malice in law, and no doubt where the word ' mali- 
ciously' is used in a pleading, it means intentionally, 
wilfully. It has been decided that if the word ' mali- 
ciously ' is omitted in a declaration for libel, and the 
words 'wrongfully' or 'falsely' substituted, it is suffi- 
cient, the reason being that the word ' maliciously,' 
as used in a pleading, has only a technical meaning ; but 
here we are dealing with malice in fact, and malice then 
means a wrong feeling in a man's mind." 

Malice may be defined as any indirect and wicked 
motive which induces the defendant to defame the 
plaintiff. If malice be proved, the privilege attaching 
to the occasion is lost at once. 



lllustratioyis. 

Plaintiff assaulted the defendant on the highway ; the defendant met a 
constable and asked him to arrest the plaintiff. The constable refused to 
arrest the plaintiff unless he was charged with a felony. The defendant 
knowing full well that the plaintiff had committed a misdemeanour only, 
viz., the assault, charged him with felony, in order to get him locked up for 
the night. Held that the charge of felony Avas malicious, as being made 
from an indirect and improper motive. 

Hmith V. HodgesJcins, Cro. Car. 276. 

A near relative, or even an intimate friend, may warn a lady not to marry 
a particular suitor, and assign his reasons for thus- cautioning her, provided 



268 MALICE. 

this be done \\'\\X\ a coiisciuiilious desire for her well'arej and iu the bond fide 
belief that the charges made are true. 

Todd y.^Hmdins, 2 M. & Eol). 20 ; 8 C. & P. 888. 
But if a total stranger wrote an anonymous letter to the lady ; or a fortiori, 
if a rival thus endeavoured to oust the plaintiff from the lady's affections, 
there -svould be evidence of malice to go to the jury. 

The defendant on being applied to for the character of the ])laintifi' who 
had been his saleswoman, charged her with theft. He had never made such 
a charge against her tUl then ; he told her that he would say nothing about it, 
if she resumed her employment at his hoiise ; subsequently, he said that if 
she would acknowledge the theft he would give her a character. Held that 
there was abundant evidence that the charge of theft was made mala fide, 
with the intention of compelling plaintiff to return to defendant's service. 
Damages, £60. 

Jachon v. Hopperton, 16 C. B. (N. S.) 829 ; 12 W. E. 913 ; lo 
L. T. 529. 

Bogers v. Clifton, 3 B. & P. 587. 
The defendant made a charge of felony against his former shopman to his 
relatives during his absence in London, with a view of inducing them to 
compoimd the alleged felony, and not for the purpose of prosecution or 
investigation. He actually received .£50 from plaintiff's brother as hush- 
money. Held that the charge of felony was altogether unprivileged. 

Hooper v. Tniscott, 2 Bing. N. C. 457 ; 2 Scott, 672. 
Letters from the commanding officer of a regiment to his immediate 
superior, containing charges against the colonel in command ; and a con- 
versation with a member of Parliament as to a question to be put in the 
House of Commons relative to the dismissal of the colonel on those charges, 
were held to be prima facie privileged : but circumstances showing that the 
letters were "nTitten, not from a sense of duty, but from personal resentment 
on account of other matters, and that the object of the conversation was to 
prejudice the plaintiff by reason of such personal resentment — lield, evidence 
of actual malice, taking aAvay the privilege. 

DicTcson v. The Earl of Wilton, 1 F. & F. 419. 
A speech made by a member of Parliament in the House is absolutely 
privileged ; but if he subsequently causes his speech to be printed, and 
published, with the malicious intention of injuring the plaintiff, he will be 
liable both civilly and criminally. 

R. V. Lord Abingdon, 1 Esp. 226. 

R. V. Crecvey, 1 M. & S. 273. 
The rector dismissed the parish schoolmaster for refusing to teach in the 
Sunday School. The schoolmaster opened another school on his own 
account in the parish. The rector published a pastoral letter warning all 
parishioners not to support " a schismatical school," and not to be partakers 
with the plaintiff " in his evil deeds," which tended " to produce disunion 
and schism," and " a spirit of opposition to authority." Held that there 
was some evidence to go to the jury that the rector cherished anger and 
malice against the schoolmaster. 

Gilpin V. Foxdcr, 9 Ex. 615 ; 23 L. J. Ex. 152 ; IS Jur. 293. 



PLAINTIFF MUST PROVE MALICE. 269 

The det'eudants presented a petition in tlie Uroydon County Court to 
adjudicate the pUiintiff a bankrupt, and to set aside a bill of sale which they 
alleged to be fraudulent. The County Court judge heard the case in his 
own room, where no reporters were present, and decided that the bill of 
sale was fraudulent. After tlie case was over, the defendants sent for a 
reporter to the Greyhound Hotel, and gave him an account of the proceed- 
ings before the County (^nnt judge, from which he drew up a report which 
appeared in several papers. The jury found that the report was "fair as 
far as it went ; " but it did not state the fact tliat theplaintilf had announced 
his intention to appeal. Held that neither this omission, nor the fact that 
the report was furnished by one of the parties, instead of being taken by the 
reporter in the usual way, was, by itself, sutlicient to destroy the privilege 
attaching to all fair reports of legal proceedings. Per Cockburn, C. J., at 
Nl&i Prius, Myers v. Defries, Times, July 23rd, 1877. [But the jury being 
satisfied from the whole circumstances that the defendant furnished the 
report witli the express intention of injuring the plaintiff, gave the plaintilf 
£-lb() damages on the first trial, and one farlliing damages on the second. 
See Myers v. Defries, 4 Ex. D. 176 ; 5 Ex. D. 15, 180 ; 48 L. J. Ex. 446 ; 
28 W. R. 406 ; 40 L. T. 795 ; 41 L. T. 695 ; from which it would seem the 
jury at all events considered that a man may not injure his enemv, even 
with a fair weapon.] 

And see Stevens v. Sampson, 5 Exch. Div. 53 ; 49 L. J. Q. B. 

120 ; 28 W. R. 87 ; 41 L. T. 782. 
Salmon v, Isaac, 20 L. T. 885. 

The onus of proving malico lies on the plaintiff ; the 
defendant cannot be called on to prove he did not 
act malicionsly, till some evidence of malice, more than a 
mere scintilla^ has been adduced by the plaintiff. [Taylor 
V. HawJcins, 16 Q. B. 321 ; 15 Jur. 746 ; 20 L. J. Q. B. 
313; Cook and another v. Wildes, 5 E. & B. 340; 24 
L. J. Q. B. 367 ; 1 Jur. N. S. 610; 3 C. L. E. 1090 ; 
Clark V. Mohjneux (C. A.), 3 Q. B. D. 237 ; 47 L. J. 
Q. B. 230 ; 26 W. \l. 104 ; 37 L. T. 094 ; 14 Cox, C. C. 
1 ; ChiUingivorth v. Grimhle (C. A.), Times, for Nov. 7th, 
1877.) And the plaintiff must prove express malice by 
some evidence besides that which merely proves the 
falsity of the statement. (Cauljield v. Whitiuorth, 16 
W. E. 936; 18 L. T. 527.) That the defendant was 
mistaken in the words he spoke confidentially is, taken 
alone, no evidence of malice. This is so also in America ; 
see Leivis and Herrick v. Chapman (Selden, J.), 2 Smith 



270 MALICE. 

(IG N. Y. R.)^ 3G9 ; Vandersee v. McGregor, 12 Wend. 
54G ; Fowles y. i?o?i'e/i, 3 Tiffany (30 1^. Y. E.) 20. 

Malice may be proved by some extrinsic evidence of 
ill-feeling, or personal hostility between plain tiff and 
defendant ; such as threats by defendant that he would 
rid the town of the plaintiff' {Blagg v. Stiirt, 10 Q. B. 
904; 11 Jur. 101 ; 10 L. J. Q. 13. 39); former libels 
or slanders on the plaintiff, &c. Such evidence must go 
to prove that the defendant himself was actuated by 
personal malice against the plaintiff. In an action 
against the publisher of a magazine, evidence that the 
editor or the author of any article, not being the pub- 
lisher, had a spite against the plaintiff, is of coui'se in- 
admissible. [RohertsoR v. Wglde, 2 Moo. & Eob. 101 ; 
Clark \. Netosmn, 1 Ex. 131, 139; Carmichael y. Water- 
ford and Lmerick Ry. Co., 13 Ir. L. E. 313.) But the 
plaintiff is not bound to prove malice by extrinsic 
evidence. {Wrights. Woodgatc, 2 C. M. & E. 573 ; 1 Tyr. 
& G. 12 ; 1 Gale, 329 ; ) he may rely on the words of the 
libel itself and on the circumstances attending its pub- 
lication, as aff'ording evidence of malice ; or in case of 
slander on the exaggerated language used, and on the 
fact that third persons were present. 

But in either case, if the evidence adduced is equally 
consistent with either the existence or non-existence of 
malice, the Judge should stop the case ; for there is 
nothing to rebut the presumption which has arisen in 
favour of the defendant from the privileged occasion. 
{SomcrviUe v. Haivldm, 10 C. B. 590 ; 20 L. J. C. P. 
131 ; 15 Jur. 450; Harris v. Thompson-, 13 C. B. 333.) 
Thus, if the only evidence of malice be the terms of the 
libel itself in reference to an act of the plaintiff's, and 
that act was in its nature equivocal, and would bear a 
construction compatible with hona fides in the defendant, 
then there is no evidence of malice to go to the jiuy. 



EXTRINSIC EVIDENCE. 271 

{Sjnll y. Maule, L. E. 4 Ex. 232 ; 38 L. J. Ex. 138 ; 17 
W. E. 805 ; 20 L. T. 675.) 

A mere mistake imiocently made through excusable 
iuadyertence cannot in any case be evidence of malice. 
{Harrison v. Bush, 5 E. & B. 350 ; 1 Jur. K S. 846 ; 25 
L. J. Q. B. 25 ; Brett v. Watson, 20 W. E. 723 ; Ker- 
shaw Y. Baileij, 1 Ex. 743; 17 L. J. Ex. 129 ; JScarlly. 
Dixon, 4 F. & F. 250 ; Pater v. BaJcer, 3 C. B. 831 ; 
16 L.J. C. P. 124; lljur. 370.) 



I. Extrinsic evidence of malice. 

Malice may be proved by extrinsic evidence showing 
that the defendant bore a long-standing grudge against 
the plaintiff, that there were former disputes between 
them, that defendant had formerly been in the plaintiff's 
employ, and that plaintiff had been compelled to dismiss 
him for misconduct, &c. &c. Anything defendant has 
ever said or done with reference to the plaintiff may be 
urged as evidence of malice. Indeed, it is very difficult 
to say what possible evidence is inadmissible on this issue. 
The plaintiff has to show what was in the defendant's 
mind at the time of publication, and of that no doubt the 
defendant's acts and words on that occasion are the best 
evidence. But if plaintiff' can prove that at any other 
time, before or after, defendant had any ill-feeling against 
him, that is some evidence that the ill-feeling existed 
also at the date of publication ; therefore all defendant's 
acts and deeds t-hat point to the existence of any such 
ill-feeling at any date, are evidence admissible for what 
they are worth. In fact, whenever the state of a 
person's mind on a j^articular occasion is in issue, 
everything that can tln^ow any light on the state of his 
mind then is admissible, although it happened on some 



272 MALICE. 

other occasion. (See R. v. Francis, L. E. 2 C. C. E. 128 ; 
and Blalce v. Albion Assurance Socictij, 4 C. P. D. 94 ; 
48 L. J. a P. 169 ; 27 W. E. 321 ; 40 L. T. 211.) 

Thus any other Avords written or sjooken by the de- 
fendant of the plaintiff, either before or after those sued 
on, or eyen after the commencement of the action, are 
admissible to show the animus of the defendant ; and for 
this pui-pose it makes no difference whether the words 
tendered in evidence be themselves actionable or not, or 
whether they be addressed to the same party as the 
words sued on or to some one else. {Pearson v. Le- 
maitre, 5 M. & Gr. 700 ; 12 L. J. Q. B. 253 ; 7 Jur. 
748 ; 6 Scott, :N'. E. 607 ; MeacU\ DauVujnij, Peake, 168.) 
Such other words need not be connected Avith or refer to 
the libel or slander sued on ; provided they in any Avay 
tend to show malice in defendant's mind at the time of 
publication. {Barrett v. Long, 3 H. L. C. 395 ; 7 Ir. L. E. 
439 ; 8 Ir. L. E. 331.) 

And not only are such other words admissible in 
evidence, but also all circumstances attending their pub- 
lication, the mode and extent of their repetition, &c. ; 
the more the evidence approaches proof of a systematic 
practice of libelling the plaintiff, the more convincing it 
will be. {Bond \. Douglas, 7 C. & P. 626 ; Barrett v. 
Long, 3 H. L. C. p. 414.) The jmyno doubt should be 
told, Avhenever the other words so tendered in evidence 
are in themselves actionable, that they must not give 
damages in respect of such other words, because they 
might be the subject-matter of a separate action. 
{Pearson v. Lemaitre, supra) ; but the omission by the 
Judge to give such a caution will not amount to a mis- 
direction. {Darbg v. Ouseleg, 1 H. & IS". 1 ; 25 L. J. 
Ex. 227; 2 Jur. X. S. 497.) But the defendant is 
always at liberty to prove the truth of such other words 
so given in evidence ; for he could not ^^lead a justifies- 



PREVIOUS LIBELS. 273 

tion as to tlicm, as tliey were not set out ou the record. 
{Stuart Y. Lovcll, 2 Stark. 93; Warne v. Chndivcll, 2 
Stark. 457.) 

It must be remembered that this evidence of former or sub- 
sequent defamation is only admissible to determine quo animo 
the words sued on were publislied ; that is, they are only 
admissible when malice in fact is in issue. If there is no 
question of malice, no such other libels would be admissible, 
unless they had immediate reference to the libel sued on ; and 
even then it would be better that they should be set out in the 
statement of claim. Finiierty v. Tipper, 2 Camp. 72 ; Stuart 
V. Lovell, 2 Stark. 93 ; Defries v. Davis, 7 C. & P. 112, For 
such other libels are clearly independent substantive causes of 
action, and should not be used unfairly to enhance the damages 
in this action. It has sometimes been held that even when 
malice is in issue other words could not be given in evidence if 
•they themselves were actionable. Pearce v. Ornshy, 1 M. & 
Rob. 455 ; Symmons v. Blake, ib. 477 ; but these cases arc 
expressly overruled, or explained away by Tindal, C.J., in 5 M. 
& Gr. 719, 720. And see the remurks of Lord EUenborough 
in Rudell v. Macquister, 1 Camp. 49, n. ; and of Jervis, C.J., 
in Camfield v. Bird, 3 C. & Kir. 56. And it is now clear law 
that whenever the intention of the defendant is equivocal, that 
is, whenever the question of malice or hoiui fides is pi'operly 
about to be left to the jury, evidence of any previous or subse- 
quent libel is admissible, even though it be more than six 
years prior to the libel sued on ; and even though a former 
action has been brought for the libel now tendered in evidence 
and damages recovered therefor. Symmons v. Blake, 1 M. & 
Rob. 477 ; Jachson v. Adams, 2 Scott, 599. See also Charlter 
V. Barret, Peake, 32 ; Lee v. Huson, Peake, 223 ; Jachson v. 
Adams, 2 Scott, 599, The law is the same in America, 
Fowles V. Boiven, 3 Tiffany (30 N. Y. Tl.) 20. 

So if the dofcndaiit reasserts the libel in numbers of 
his periodical appearing after the commencement of the 
action {Chuhh v. Westtei/^ G C. & P. 43G) ; or in private 
letters -written after action (Pr arson v. Lemaitre^ 5 M. & 



274 MALICE. 

Gr. 700) ; or if the defendant continues to sell copies of 
the libel at his shop up to two days before the trial 
{Plunkctt V. Cohhett, 5 Esp. 136 ; Barivell v. Adkins, 2 
Scott, N. E. 11 ; 1 M. & Gr. 807) ; these facts are ad- 
missible as evidence of deliberate malice, though no 
damages can be given in respect of them. A plea of 
justification may be such a reassertion of the libel or 
slander, l^o doubt where the words are privileged, the 
mere fact that a plea of justification was put on the 
record is not of itself evidence of malice sufficient to go 
to the jury. [Wilson v. Robinson^ 7 Q. B. 68 ; CaulfieldY. 
W/dtivorth, IQ W. E. 936; 18 L. T. 527; Brooke v. 
AvriHon, 42 L. J. C. P. 126.) But if there be other 
circumstances suggesting malice, the plaintiff's counsel 
may also comment on the justification pleaded : and 
indeed, in special circumstances, as where the defendant 
at the trial Avill neither abandon the plea, nor give any 
evidence in support of it, thus obstinately persisting in 
the charge to the very last without any sufficient reason, 
this alone may be sufficient evidence of malice. ( Wanvick 
V. Foulkes^ 12 M. & W. 508 ; Simpson v. Rohinson^ 12 
Q. B. 513; 18 L.J. Q. B. 73.) 

The mere fact that the words are now proved or ad- 
mitted to be false is no evidence of malice, unless 
evidence be also given by the plaintiff to show that the 
defendant knew they were false at the time of publica- 
tion. {Fountain v. Boodle^ 3 Q. B. 5 ; Caidfield v. ^YMt- 
worih, 16 W. E. 936 ; 18 L. T. 527.) So if a false and 
groundless charge be made against the plaintiff, on a 
privileged occasion, but without reasonable or probable 
cause, this may be left to the jury, if there be any other 
circumstance suggesting malice [Padmore v. Lawrence^ 
11 A. & E. 380); but by itself, it is no evidence of 
malice. {Clark y. Mohjneux, 3 Q. B. D. (C. A.) 237.) 
As a general rule, therefore, the plaintiff cannot give any 



FALSITY. 275 

evidence of the falsity of the charge, unless a justifica- 
tion be pleaded ; for such evidence is no proof of malice, 
and the truth of the charge is not in issue. [Brown v. 
Croome, 2 Stark. 297 ; Cornwall v. Richardson, 1 E. & M. 
305 ; Brine v. Bazalgdte, 3 Exch. 692; 18 L. J. Ex. 348.) 
But where ^o, parties have been living in the same 
house for a long time, as master and servant, and the master 
must have known the true character of his servant, and 
yet has given a false one, there the plaintiff is allowed 
to give general evidence of his good character, and to 
call other servants of the defendant to show that no com- 
plaints of misconduct were made against the plaintiff 
whilst he was in defendant's service ; such evidence 
tending to show that defendant at the time he gave 
plaintiff a bad character, knew that what he was writing- 
was untrue, and that is proof positive of malice. 
{Fountain v. Boodle, 3 Q. B. 5 ; 2 G. & D. 455 ; Rogers 
V. >SV/- Gervas Clifton, 3 B. & P. 587, ante, p. 202.) 

lUustTations. 

Where a master has given a servant a bad character, the circumstances 
under which they parted, any expressions of illwill uttered by the master 
then or subsequently, the fact that the master never complained of the 
2ilaintift"s misconduct whilst she was in his service, or when dismissing her 
would not specify the reason for her dismissal, and give her an opportunity 
of defending herself, together with the circumstances under which the 
character was given, and its exaggerated language, are each and all evidence 
of malice. 

Kdly V. Partinyton, 4 B. & Adol. 700 ; 2 N. & M. 460. 

Jackson v. HojijJerton, 16 C. B. N. S. 829 ; 12 W. K. 913 ; 10 

L. T. 529 ; ante, p. 268. 
Rogers v. Sir Gervas Clifton, 3 B. & P. 387 ; ante, p. 202, 
Defendant subsequently to the slander, admitted that there had been a 
dispute between himself and the plaintiff prior to the slander about a sum 
(if ^20 which the plaintiff claimed from the defendant. At the trial, also, 
tlie plaiutifF offered to accept an ai)olog3^ and a verdict for nominal damages, 
if defendant would withdraw his plea of justification. The defendant 
ii'f'u.-ed to witlidraw the ])lea, yet did not attemj)t to j^rove it. IMd ample 
evidence of malice. Damages £'40. 

SimiKon v. lloUnson, 12 Q. B. 511 ; 18 L. J. Q. B. 73 ; 13 
Jur. 187. 

T 2 



276 MALICE. 

If it be proved that any material part of a charge is false [and that the 
defendant knew it was false at the time he made the imputation], or if the 
charge he made to an official who has no jurisdiction over the matter, this 
is evidence of malice. 

Bla(j(j V. iitm% 10 Q. B. 899 ; 16 L. J, Q. B. 39 ; 11 Jur. 101 ; 

8 L. T. (Old S.), 135 ; as explained by Williams, J., 13 C. B. 

352. 

It is somi, evidence of malice that plaintiff and defendant are rivals in 

trade, or that they comi:)eted together for some post, and plaintiff succeeded, 

and that then defendant, being disapjpointed, wrote the libel. 

See Warman v. Kine, 1 Jur. 820 ; Sviith v. Mathews, 1 Moo. & 
Rob. 151. 
The defendant wrote a letter to be published in the newspaper. The 
careful editor struck out all the more outrageous passages, and published 
the remainder. The defendant's manuscript was admitted in evidence, and 
the obliterated passages read to the jury, to show the animus of the 
defendant. 

Tari^lcy v. Blaby, 2 Scott, 642 ; 2 Bing. N. C. 437 ; 1 Hodges, 
414. 
Even though a report of judicial proceedings be correct and accurate, still 
if it be published from a malicious motive, whether by a newspaper reporter 
or any one else, the privilege is lost. 

Stevens v. Sampson, 5 Exch. D. 53 ; 49 L. J. Q. B. 120 ; 28 
W. R. 87 ; 41 L. T. 782. 
A long practice by the defendant of libelling the plaintiff is cogent 
evidence of maHce ; therefore other libels of various dates, some more than 
six years old, some published shortly before that sued on, are all admissible 
to show that the publication of the culminating libel sued on was malicious 
and not inadvertent. 

Barrett v. Long, 3 H. L. C. 395 ; 7 Ir. L. R. 439 ; 8 Ir. L. R. 331. 
A libel having ajjpeared in a newspaper, subsequent articles in later 
numbers of the same newspajDer, alluding to the action and affirming the 
truth of the p)rior libel, are admissible as evidence of malice. 
Chubb v. Westley, 6 C. & P. 436. 
Barwdl v. Adkiyis, 1 M. & Gr. 807 ; 2 Sc. N. R. 11. 
Mead v. Daubigny, Peake, 168. 
So if there be subsequent insertions of substantially the same libel in 
other newspapers. 

Delegal v. Highley, 8 C. & P. 444; 5 Scott, 154 ; 3 Bing. N. C. 
950 ; 3 Hodges, 158. 
So if the defendant persists in repeating the slander or disseminating the 
libel pending action. In Pearson v. Lemaitre, 5 M. & Gr. 700 ; 6 Scott, 
X. R. 607 ; 12 L. J. Q. B. 253 ; 7 Jur. 748 ; a letter was admitted which 
liad been written subsequently to the commencement of the action, and 
fourteen months after the libel complained of. In McLeod v. TVakley, 3 
C. & P. 311, Lord Tenterden admitted a paragraph published only two 
days before the trial. 

Where the defendant verbally accused plaintiff of perjury, evidence that 



INTRINSIC EVIDENCE. 277 

subsequently to the slander defendant preferred an indictment against the 
plaintiff for perjury, which was ignored by the grand jury, was received as 
evidence that the slander was deliberate and malicious, although it was a 
fit subject for an action for malicious prosecution. 

Tate V. Hunifplirey, 2 Camp. 73, n. 

And see Finden v. JVestlake, Moo. & Malkin, 461. 
In an action for libel and slander on privileged occasions, the only 
evidence of malice was some vague abuse of tlie plaintiff, uttered by the 
defendant on the Saturday before the trial in a public-house at Rye. Such 
aljuse had no reference to the slander or the libel or to the action. Held, 
that this evidence w\as admissible ; but that the judge should have called 
the attention of the jury to the vagueness of the defendant's remarks in the 
public-house, to the fact that they were uttered many months after the 
alleged slander and libel, and that therefore they were but very faint 
evidence that the defendant bore the plaintiff malice at the time of the 
publication of the alleged slander and libel. A new trial was ordered. 
Costs to abide the event. 

Hemmiyujs v. Gasson, E. B. & E. 346 ; 27 L. J. Q. B. 252 ; 4 
Jur. N. S. 834. 



II. Evidence of malice derived from the mode and extent of 
pullication^ the terms employed^ ^c. 

The plaintiff is not restricted to extrinsic evidence of 
malice ; he may rely on the words of the libel itself and 
the cii'cumstances attending its publication ; or in the 
case of slander npon the exaggerated language used, on 
the fact that thii-d persons were present who were not 
concerned in the matter, &c. &c. The fact that the de- 
fendant was mistaken in the information he gave is, as 
we have seen, no evidence of malice. The jury must 
look at the circumstances as they presented themselves to 
the mind of the defendant at the time of the publication ; 
not at what are proved at the trial to have been the true 
facts of the case. It is a question of lona fides : Did the 
defendant honestly believe that he had a duty to perform 
in the matter, and act under a sense of that dut}' ? That 
other men would not have so acted is immaterial. That 
shrewder men would have seen through the tangled web 
of facts, and have discovered that things were not as 



278 MALICE. 

tlicy seemed, i>s absolutely immaterial. The question is, 
Did the actual defendant honestly believe what he said ? 
not whether a reasonable man so placed would have be- 
lieved it. {Per Brett, L. J. 3 Q. B. D. 248.) The 
defendant will not lose the privilege afforded by the 
occasion merely because his reasoning powers were de- 
fective. {Per Cotton, L. J., il). 249.) " People believe 
um-easonable things lond fide,''"' says O'Hagan, J., in 
Fltzejerald v. Camphell^ 15 L. T. 75. Similarly, the 
fact that he relied upon hearsay evidence without seek- 
ing primary evidence is immaterial. [Per Lord West- 
bury in Lister v. Perrijman^ L. E. 4 H. L. 521 ; 
overruling (Exch. Ch.) L. E. 3 Exch. 197.) Men of 
business habitually act upon hearsay evidence in matters 
of the greatest importance. But this is supposing of 
course that the defendant is guilty of no laches, and does 
not wilfully shut his eyes to any som^ce of information. 
If, indeed, there were means at hand for ascertaining the 
truth of the matter, of which the defendant neglects to 
avail himself and chooses rather to remain in ignorance 
when he might have obtained full information, this will 
be evidence of such wilful blindness as may amount to 
malice. 

But if defendant at the time of publication knew that 
what he said was false, this is clear evidence of malice. 
A man who knowingly makes a false charge against his 
neighbour cannot claim privilege. It can never be liis 
duty to circulate lies. And if the statement was made 
wantonly, without the defendant's knowing or caring 
whether it was true or false, such recklessness is con- 
sidered as malicious as deliberate falsehood. ( Clarli v. 
Molyneux, 3 Q. B. D. 247 ; 47 L. J. Q. B. 230 ; 26 W. 
E. 104 ; 37 L. T. 694.) And of course if in miting or 
speaking on a privileged occasion, the defendant breaks 
out into irrelevant charges against the plaintiff, wholly 



EXPRESSIONS IN EXCESS. 279 

unconnected witli the occasion whence the priyilege is 
deriyed, such excess jfvill be evrdence_ of malice ; or, 
speaking more accurately, such in-elevant charges are 
wholly uniDrivileged, and no question of actual malice 
arises as to them ; imlcss defendant proves them true 
the verdict must go against him. [Iluniicy v. Ward, 6 
C. B. N. S. 514 ; 6 Jur. ^. S. 18 ; Senior v. MecUand, 4 
Jm\ (N. S.) 1039 ; Picton v. Jachnmi, 4 C. & P. 257 ; 
Simmonds v. Dunne, Ir. E. 5 C. L. 358.) One part of a 
letter may be privileged ; other parts of the same letter 
unprivileged. ( Warren v. Warren, 1 C. M. & E. 251 ; 
4 Tyr. 850.) And where the occasion is privileged, 
and it is clear that the defendant believed in the truth 
of the communication he made, and was acting under a 
sense of duty, the plaintiff's counsel mtiy still rely upon 
the words employed, and the mamier and mode of publica- 
tion, as evidence of malice. A man honestly indignant 
may often be led away into exaggerated or unwarrant- 
able expressions ; or he may forget where and in whose 
presence he is speaking, or how and to whom his wi'iting 
may be published. Clearly this is but faint evidence of 
actual malice; the jury_ win gpiiernl1;^-j wd£m_j gliglif 
excess of righteous zeal. But the pnoT^quesHbn is 
aIwaysT~"T[s* there any evidence of malice to go to 
the jury ? " It is much better for the defendant, if 
the judge Avill stop the case, as he ought to do if there 
be no more than a scintilla of evidence for them. But it 
is very difficult to say beforehand what will be deemed a 
mere scintilla, what more than a scintilla, in any given 
case. The same piece of evidence may make different 
impressions on the minds of different judges. 



28o MALICE. 



(i.) Where the expressions employed are exaggerated and 
univarrantahlc ; hut there is no other evidence of malice, 

" It is sometimes difficult to determine when defama- 
tory words in a letter may be considered as hy themselves 
affording evidence of malice." [Per Bramwell, L. J., 3 
Q. B. D. 245.) But tlie test appears to be this. Take 
the facts as they appeared to the defendant's mind at the 
time of publication ; are the terms used such as the de- 
fendant might have honestly and bond fide employed 
under the cii'cumstances ? If so the judge should stop 
the case. But if the expressions employed still appear 
uncalled for and in excess of the occasion, though taken 
in connection with what was in defendant's mind at the 
time, then it would seem that the defendant must have 
spoken recklessly or angrily, without weighing his words, 
and that is some evidence of malice to go to the jury. 
{Clark V. Molijneux, 3 Q. B. D. 247.) Thus, if the 
plaintiff's conduct was equivocal, and might honestly 
and l)ond fide be supposed by the defendant to be such 
as he described it, the mere fact that he used strong 
words in so describing it, is no evidence of malice to go 
to the jury, [^plll v. Maule, Exch. Ch., L. E. 4 Exch. 
232 ; 17 W. B. 805 ; 20 L. T. 675 ; 38 L. J. Ex. 138.) 

But where the language used in a libel is " much too 
violent for the occasion and circumstances to which it is 
applied ; " or " utterly beyond and disproportionate to 
the facts ; " or where improjDcr motives are unnecessarily 
imj)uted, there is evidence of malice to go to the jniy. 
{Fryer v. Klnnersley, 15 C. B. (N. S.) 422 ; 33 L. J. 
(C.P.) 96; 12 W. E. 155; 9 L. T. 415; Gilpin v. 
Fowler, 9 Ex. 615 ; 23 L. J. Ex. 152 ; 18 Jur. 293.) 

And this is so especially in cases where a rumoiu- 
prejudicial to the plaintiff has reached the defendant, 



EX A GGERA TIONS. 28 1 

which he feels it his duty to reijort to those concernecl, 
but in rej^ortiug it, he does not state the rumour as it 
reached him, but gives an exaggerated or highly coloured 
version of it. ^''Inimici famam non ita, ut nata est^feruntP 
Plant. Persa II. i. 23. But in other cases, the tendency 
of the Courts is not to submit the language of privileged 
communications to too strict a scrutiny. ''To hold all 
excess beyond the absolute exigency of the occasion to 
be evidence of malice would in effect greatly limit, if not 
altogether defeat that iDrotection which the laAv throws 
over privileged communications." {Per Sir Eobert Collier, 
L. E. 4 P. C. 508.) " The particular expressions ought 
not to be too strictly scrutinized, provided the intention 
of the defendant was good." (P(?r Alderson, B., in Wood- 
zuard v. Lander', 6 C. & P. 550. And see Taylor v. 
Hawkins^ 16 Q. B. 308 ; RucJdei/ v. Kiernan, 7 Ir. C. L. 
E. 75.) " That the expressions are angry is not enough ; 
the jury must go fm-ther and see that they are malicious." 
{Per Tindal, C.J., in Shipley v. Todhunter, 7 C. & P. 680.) 

Illustrations. 

Defendant clianged his printer, and on a j)rivileged occasion stated in 
writing, as liis reason for so doing, that to continue to pay the cliarges 
made by his former printer, the plaintiff, vrould be "to submit to what 
appears to have been an attempt to extort money by misrepresentation," 
Held, that these words imputing improper motives to the plaintiff were 
evidence of malice to go to the jury. Damages £50. 

Coohe v. Wildes, 5 E. & B. 328 ; 24 L. J. Q. B. 367 ; 1 Jur. 

N. S. 610 ; 3 C. L. E. 1090. 
O'Donorjhue v. Hussey, Ir. E. 5 C. L. 124. 
Plaintiff sued defendant on a bond; defendant in public, but on a 
privileged occasion, denounced tlie plaiiitiif for attempting to extort money 
from him. Held, that the words were in excess of the occasion. 

Robertson v. McDoiujall, 4 Bing. 670 ; 1 M. k P. 692 ; 3 C. & P. 

259. 
See Tuson v. Evans, 12 A. & E. 733, ante, p. 227. 
While the defendant was engaged in winding up the affairs of the plain- 
tiff's firm, of which defendant was also a creditor, the plaintiff took from 
the cash-box a parcel of bills to the amount of i;i264. Thereupon the 
defendant wrote to another creditor of the firm that the conduct of the 



282 MALICE. 

plaintiff " has been most disgraceful and dishonest, and the result has been 
to diminish materially the available assets of the estate." Hdd. that the 
occasion was privileged, and that, though the words were strong, they were, 
when taken in connection with the facts, such as might have been used 
honestly and honu fide by the defendant ; for the plaintiff's conduct was 
equivocal, and might well be supposed by the defendant to be such as he 
described it : and that the judge was right in directing a verdict to be 
entered for the defendant, there being no other evidence of actual malice. 

Si)ill V. Maule (Exch. Ch.) ; L. E. 4 Ex. 232 ; 38 L. J. Ex. 138 
17 W. R. 805 ; 20 L. T. 675. 
The defendant tendered to Brown at Crickhowell two £l notes on the 
plaintiffs' bank ; which Brown returned to him saying, there was a run 
upon that bank, and he would rather have gold. The defendant the very 
next day went into Brecon and told two or three people confidentially that 
the plaintiff's' bank had stop^jed, and that nobody would take tlieir bills. 
Held, that this exaggeration of the report was some evidence of malice to go 
to the jury. 

Bromage v. Prosser, 4 B. & Cr. 247 ; 6 U. & R. 296 ; 1 C. & P. 
475. 

And see Senior v. Medland, 4 Jur. (N. S.) 1039. 
A gentleman told the second master of a school that he had seen one of 
the under-masters of the school on one occasion coming home at night " under 
the influence of drink," and desired him to acquaint the authorities with the 
fact. The second master subsequently stated to the governors that it was 
notorious that the r;nder-master came home "almost habitually in a state of 
intoxication." There was no other e\'idence of malice. Held, that the Lord 
Chief Justice was right in not withdrawing the case from the jury. 

Hume V. Marshall, Times for November 26th, 1877. 

(ii.) As to tlie method of communication employed. 

If the mode and extent of a privileged publication be 
more injurious to the plaintift: than necessary, this may 
be evidence of malice in the publisher. Though the 
words themselves would be privileged if addressed only 
to the few individuals concerned, yet the privilege may 
be lost if the defendant deliberately chooses to publish 
them to the general public, or to any one who has no 
corresponding interest in the communication. Letters as 
to plaintiff's private affairs should not be published in 
the newspapers, however meritorious the wi'iter's motive 
may be. Confidential communications should not be 
shouted across the street for all the world to hear. 



UNDUE PUBLICITY. 283 

{Wilson V. Collins, 5 C. & P. 373.) Defamatory remarks, 
if wi'itten at all, should bo sent in a private letter pro- 
perly sealed and fastened up ; not Avi-itten on a postcard, 
or sent by telegraph ; for two strangers at least read 
every telegram ; many more most post-cards. ( Williamson 
V. Freer, L. R. 9 C. P. 393; 43 L. J. C. P. 161 ; Whit- 
field Y. S. E. Rfj. Co., E. P. & E. 115 ; Robinson v. 
Jones, 4 L. R. Jr. 391.) There is no privilege attaching 
even to correct and accurate reports of public meetings. 
{Davison v. Duncan, 7 E. & B. 231; 26 L. J. Q. B. 104 ; 
Popham V. PicJchurn, 7 H. & N. 897 ; 31 L. J. Ex. 133 ; 
Purcell V. ^oivlcr, 2 C. P. D. 215 ; 46 L. J. C. P. 308 ; 
25 W. P. 362 ; 36 L. T. 416.) But where printing a 
report is the usual and necessary method of commimi- 
cation between the directors and shareholders, the 
privilege will not be lost merely' because the compositors 
and jom-neymen printers employed were not shareholders. 
{Laivless v. Anglo-Egyptian Cotton and Oil Co., L. E. 4 
Q. B. 262.) So with an advertisement inserted in a news- 
paper defamatory of the plaintiff ; if such advertisement 
be necessary to protect the defendant's interests, or if ad- 
vertising was the only way of effecting the defendant's 
object, and such object is a legal one, then the circum- 
stances excuse the extensive publication. But if it was 
not necessary to advertise at all, or if the defendant's 
object could have been equally well effected by an ad- 
vertisement which did not contain the words defamatory 
of the plaintiff, then the extent given to the announce- 
ment is evidence of malice to go to the jmy. {Bro?un v. 
Croome, 2 Stark. 297 ; and Lag v. Lawson, 4 A. & E. 
795 ; overruling, or at least explaining, Delang v. Jones, 
4 Esp. 191.) The law is the same as to posting libellous 
placards {Cheese v. .Scales, 10 M. & W. 488); or 
having a libellous notice cried by the town crier. 
{Woodardx. Dowsing, 2 Man. & Ry. 74.) 



284 MALICE. 

So with a i^iiyilcgccl oral communication, it is im- 
portant to observe who is present at the time it is made. 
A desii'G shonkl be shown to avoid all unnecessary 
publicity. It is true that the accidental presence of an 
uninterested bystander will not alone take the case out 
of the privilege, and there are some communications 
which it is wise to make in the presence of witnesses ; 
but if it can be jiroved that defendant purposely chose 
a time for makine: the communication when others were 
b}', whom he knew would act upon it, this may be 8ome 
evidence of malice. The question for the jury in such 
cases is : Was the charge against the plaintiff made hona 
fide, and, if so, was it made before more persons or in 
stronger language than necessary ? {Fadmore v. Lavj- 
rcncc, 11 A. & E. 380; Fotvler and wife v. Homer ^ 3 
Camp. 294.) 

Illustrations. 

The defendant in a petition to the Hoiise of Commons charged the plain- 
tiff with extortion and oppression in his office of vicar-general to the Bishop 
of Lincoln. Copies of the petition were printed and delivered to the 
members of the committee appointed by the House to hear and examine 
grievances, in accordance with the usual order of proceeding in the House. 
No copy was delivered to any one not a member ot Parliament. Held, that 
the petition was privileged, although the matter contained in it was false 
and scandalous ; and so were all the printed copies : for, though the print- 
ing was a publication to the printers and compositors, still it was the usual 
course of proceeding in Parliament ; and it was not so great a publication 
as to have so many copies transcribed by several clerks. 

Lale v. Kiwj, 1 Lev. 240 ; 1 Saund. 131 ; Sid. 414 ; 1 Mod. 58. 

See Lmvless v. Anglo-Eyi/jHian Oottoit and Oil Co., Limited, L. E. 

4 Q. B. 262 ; 10 B. & S. 226 ; 38 L. J. Q. B. 129 ; 17 W. R. 

498, ante, p. 242. 

If libellous matter, which would have been privileged if sent in a sealed 

letter, be transmitted unnecessarily by telegraph, the privilege is thereby 

lost. 

Williamson v. Freer, L. R. 9 C. P. 393 ; 43 L. J. C. P. 161 ; 22 
W. R. 878 ; 30 L. T. 332. 
An Irisli Court will take judicial notice of the nature of a post-card, and 
will presume that others besides the person to whom it is addressed will 
read wliat is written thereon. 

Lobinson v. Jones, 4 L. R. Ir. 391. 



UNDUE PUBLICITY. 285 

Defendant having lost certain bills of exchange, published a handbill, 
offering a reward for their recovery, and adding that he beUeved they had 
been embezzled by his clerk. His clerk at that time still attended regularly 
at his office. Keld, that the concluding words of the handbill were quite 
unnecessary to defendant's oljject, and were a gratuitous libel on the 
plaintiff. Damages J200. 

Finden v. Wcstlake, Moo. & Malk. 4G1. 
The justices were al^out to swear in the phuntitf us a paid constable, when 
defendant, a parishioner, came forward and stated that the plainiitf was an 
improper person to be a constable. Held, that the fact that several other 
persons besides the justices were present, as usual, did not destroy the 
privilege attaching to such bona fide remark. 

Kershaio v. Baileij, 1 Ex. 743 ; 17 L. J. Ex. 129. 
Where a master about to dismiss his servant for dishonesty calls in a 
friend to hear what passes, the j)resence of such third party will not destroy 
the privilege. 

Taylor v. Hawldns, 16 Q. B. 308 ; 20 L. J. Q. B. 313 ; 15 Jur, 
746. 
Where a master discharged his footman and cook, and they asked him his 
reason for doing so, and he told the footman, in the absence of the cook, 
that " he and the cook had been rol )bing him," and told the cook in the 
absence of the footman that he had discharged her " because she and the 
footman had been robbing him.'' Held, that these were privileged com- 
munications as respected the absent parties, as well as those to whom they 
were respectively made. 

Manbj v. JViU ) 1-8 C. B. .544 ; 25 L. J. C. P. 294 ; 2 Jur. 
East mead v. JFitt } N. S. 1004. 
That defendant caused the libel to be industriously circulated is evidence 
of malice. 

Gathercole v. Miall, 15 M. & W. 319 ; 15 L. .J. Ex. 179; 10 Jur. 

337. 

A shareholder in a railway company himself invited reporters for the 

press to attend a meeting of the shareholders which he had summoned, and 

at which he made an attack against one of the directors. Held, that the 

privilege was lost thereby. 

Parsons v. Surgey, 4 F. & F. 247. 
And see Davis v. Cutbush and others, 1 F. & F. 487. 
Defendant accused the plaintiff, in the presence of a third person, of steal- 
ing his wife's brooch ; plaintiff Avished to be searched ; defendant repeated 
the accusation to two women, who searched the plaintiff and found nothing. 
Subse(|ueutly, it was discovered that defendant's wife had left the brooch 
at a friend's liouse. Held, that the mere publication to the two women did 
not destroy the privilege attaching to charges, if made bona fide ; but that 
all the circumstances should have been left to tlie jury. 

Padmore v. Lawrence, 11 A. & E. 380 ; 4 Jur. 458 ; 3 P. & D. 

209. 
And see Amann v. Damm, 8 C. B. N. S. 597 ; 29 L. J. C. P. 
313 ; 7 Jur. N. S. 47 ; 8 W. K. 470. 



286 MALICE. 

T]ie defendant ^vas a customer at the plaintiff's shop, and had occasion to 
complain of what he considered fraud and dishonesty in the plaintiif s con- 
duct of his business ; but instead of remonstrating quietly with him, the 
defendant stood outside the shop-door and spoke so loud as to be heard by 
every one passing down the street. The language he employed also -was 
stronger than the occasion warranted. Held that there was evidence of 
malice to go to the jury. Damages 40.s. 

" OMxj V. Lord Geo. Paulef, 4 F. & F. 1009. 
And see JFilson v. Collins, 5 C. & P. 373. 



The mere fact that the defendant volunteered the in- 
formation is, when it stands alone, no evidence of malice ; 
but if there be any other circumstances raising a pre- 
sumption of malice, then it may weigh with the jury. 
In fact, if the judge and jiuy agree in thinking the de- 
fendant's interference was officious and uncalled for, the 
privilege is lost, and no inquiry need be made as to the 
existence of express malice. 

In BrooJcs v. Blanshard, 1 Cr. & M. 779, 3 Tyrw. 844, 
Lord Lyndlmrst, C. B., says, " It is not merely because 
a communication is confidential that it is privileged, if 
it is volunteered by the party making it." But in every 
case, whether volunteered or not, the question is, Was 
the communication faiily warranted by the exigency of 
the occasion ? If so, the jury should find for the de- 
fendant, unless there be some other evidence of malice. 
Xo doubt it Avill often require a greater exigency to 
warrant the defendant in volunteering the information 
than in merely answering a confidential inquiry. But 
still in all cases where the duty to speak is clear, it is 
defendant's duty to go and tell the person concerned, if 
he does not come to the defendant. For it may well be 
that he has no suspicions, and will never come and in- 
quire. But in cases where there can be any doubt as to 
defendant's duty to speak, there the fact that the de- 
fendant took the initiative may tell against him. Thus 
it is usual for a former master to give the character of a 



COMMUNICATIONS VOLUNTEERED. 287 

servant on application^ and not before. Hence if a master 
hears a discharged servant is applying for a pLace at M.'s 
house, and "smtes at once to M. to give the servant a 
bad character, the fact that the communication was un- 
called for will be apt to tell against the master. M. 
would almost certainly have applied to the defendant 
for the information sooner or later; and the eagerness 
displayed in thus imparting it unasked will be com- 
mented on as a proof of malice, and if there be any other 
evidence of malice, however slight, may materially in- 
fluence the verdict. But if there be no other evidence 
of malice, the communication is still privileged. [Patti- 
son V. Jones, 8 E. & C. 578 ; Foivles v. Bowen, 3 Tiffany 
(30 IN". Y. E.) 20; and see other cases cited, ante, pp. 
202, 7, 9. The presumption in favour of the defendant 
arising from the privileged occasion remains, till it is re- 
butted by evidence of express malice ; and evidence 
merely equivocal, that is, equally consistent with malice 
or bona fides, will do nothing towards rebutting the pre- 
sumption. Also, when a communication is volunteered 
great care should be taken as to the person to whom it is 
addressed. No privilege attaches to a communication 
unnecessarily made to a person wholly unconcerned 
therewith. Thus in seeking redress for a grievance be 
sure to invoke the aid of some one who has some kind of 
juiisdiction in the matter. For though a bond fide 
mistake as to the respective functions of various state 
officials may easily be made by an uneducated or even 
an educated man, and will not therefore of itself be 
evidence of malice, still a statement volunteered to some 
I one who has no possible duty or power to remedy the 
abuse complained of, will be clearly "in excess of the 
occasion." (See Scarll v. Dixon, 4 F. & F. 250 ; Harrison 
V. Bush, 5 E. & B. 344 ; 25 L. J. Q. B. 25 ; Fairmun v. 
Ives, 5 B. & Aid. G42, ante, p. 224.) 



j88 malice. 



Illustrations. 



Tlie defendant, the tenant cd' a farm, required some repairs to be done at 
liis liovise ; tlie landlord's agent sent up two workmen, tbe plaintiff and 
Taylor. They made a bad job of it ; the plaintiff undoubtedly got drunk 
■while on the premises ; and the defendant was convinced from -what he 
heard that the plaintiff had broken open his cellar-door and drunk his 
cider. Two days afterwards the defendant met the plaintiff" and Taylor 
together, and charged the plaintiff" with breaking open the cellar-dour, 
getting drunk, and spoiling the job. He repeated this charge later in the 
same day to Tajdor alone in the absence of the plaintiff", and also to the 
landlord's agent. Hdcl, that the communication to the landloid's agent was 
clearly privileged as he was the plaintiff"'s employer ; that the statement 
made to the plaintiff" in Taylor's presence was also privileged, if made 
honestly and hond fide ; and that the circumstance of its being made in the 
presence of a third person did not of itself make it unauthorized, and that 
it was a question to be left to the jury to determine from the circumstances, 
including the style and character of the language used, whether the defen- 
dant acted hond fide, or was influenced by malicious motives. But, that the 
statement to Taylor, in the absence of the plaintiff, was unauthorized and 
officious, and therefore not protected, although made in the belief of its 
truth, if it were in point of fact false. 

Toogood v. Spyring, 1 Cr. M. & E. 181 ; 4 Tyr. 582. 

A lieutenant in the navy was appointed by the Government agent or 
superintendent on board a transport shi]), the Juiiiter. He wrote a letter to 
the secretary at Lloyd's imputing misconduct and incapacity to the [ilaintift", 
the master of the Jupittr. This was held altogether unprivileged ; the 
information should have been given to the Government alone, Ijy whom the 
defendant was employed. 

Hancood v. Green, 3 C. & P. 141. 



CHAPTER X. 

DAMAGES. 

Damages are of two kinds : — 
(i.) General, 
(ii.) Special. 

General Damages are such as the law will presume to 
be the natural or probable consequences of the de- 
fendant's conduct. 

Special Damages are such as the law will not presume 
to haA'e been suffered, from the nature of the words 
themselves ; they must therefore be specially claimed on 
the pleadings, and evidence of them must be given at 
the trial. Such damages depend upon the special cir- 
cumstances of the case, upon the defendant's position, 
upon the conduct of third persons, &c. &c. Very 
probably they would not have been incurred, had the 
same words been spoken on another occasion, or to 
different hearers. 

But in some cases special damage is also a neces- 
sary element in the cause of action. When on the 
face of them the words used by the plaintiff clearly 
must have injured the plaintiff's reputation, they are 
said to be actionable ji;^r se ; and the plaintiff may 
recover a verdict for a substantial amount, without 
giving any evidence of actual pecuniary loss. But 
where the Avords arc not on the face of them such as the 
courts will presume to be necessarily prejudicial to the 



290 DAMAGES. 

IDlaintiff's reputation, there evidence must be given to 
show that in fact some appreciable injury has in this 
case followed from their use. In short, where the words 
are not actionable jjer se, special damage must be alleged 
and proved, or the plaintiff will be nonsuited. The 
injury to the plaintiff's reputation is the gist of the 
action : he has to show that his character has suffered 
through the defendant's false assertions : and where 
there is no presumption in plaintiff'' s favour, he can only 
show this by giving evidence of some special damage. 

It will be convenient to divide this chapter into the 
following heads : — 

I. — General Damages. 

II. — Evidence for the plaintiff in aggravation of 
damages : — 

(i.) Malice. 

(ii.) Extent of publication, 
(iii.) Plaintift^'s good character. 

III. — Evidence for the defendant in mitigation of 
damages : — 

(i.) Apology and amends. 

(ii.) Absence of malice, 
(iii.) Plaintiff's bad character, 
(iv.) Provocation given by the plaintiff. 

(v.) Absence of special damage. 

IV. — Special Damage, where the words are not ac- 
tionable per se. 

'^ 

y. — Special Damage, where the words are actionable 

per se. 

YI. — Eemoteness of damages. -i 



GENERAL DAMAGES. 291 



I. — General Damages. 

General Damages are such as the law will presume to 
be the natural or probable consequence of the de- 
fendant's conduct. They arise by inference of law; 
and need not therefore be proved by evidence. Such 
damages may be recovered wherever the immediate ten- 
dency of the words is to impair- the plaintiif's reputation, 
although no actual pecuniary loss has in fact resulted. 

Such general damages will only be presumed where 
the words are actionable jK»e>- se. If any special damage 
has also been suffered, it should be set out on the plead- 
ings ; but, should plaintiff fail in proving it at the trial, 
he may still of course resort to and recover general 
damages. {Coolc v. Field ^ 3 Esp. 133 ; Smith v. Thomas, 
2 Bing. N. C. 372 ; 2 Scott, biQ> ; 4 Dowl. 333 ; 1 
Hodges, 353; Brouni v. Smith, 13 0. B. 596; 22 
L. J. C. P. 151 ; IT Jur. 807 ; 1 C. L. E. 4 ; Evans v. 
Harries, 1 H. & X. 251 ; 26 L. J. Ex. 31.) If one 
single issue out of many be found in favom- of the 
plaintiff the jury must proceed to assess damages. 
{Clement v. Levris, 3 Brod. & B. 297 ; 7 Moore, 200 ; 3 B. 
& Aid. 702.) 

The amount at which general damages are to be as- 
sessed lies almost entirely in the discretion of the jury ; 
the courts will never interfere with the verdict merely 
because the amount is excessive. A new trial will only 
be granted where the verdict is so large as to satisfy the 
Court that it was perverselj^ in excess or the result of 
some gross error on a matter of principle ; it must be 

u 2 



292 DAMAGES. 

shown that the jury either misconceived the case or 
acted under the influence of undue motives. In fact, 
although in theor3% it is the duty of the jury to give 
such sum only as will fauiy compensate the plaintiff for 
the injury he has sustained, yet, in practice, juries fre- 
quently, especially Avhere the defendant has acted with 
clear and express malice, give vindictive damages, which 
are clearly meant not so much as a compensation to the 
plaintiff for his loss, as a punishment to the defendant 
for his misconduct. And it is, I think, a benefit to the 
community that a penalty should thus be imposed on an 
exhibition of spite and ill-will. (See Emhlen v. Mijers, 
6 H. & N. 54 ; 30 L. J. Exch. 71 ; Bell v. Midland 
Rij. Co. 10 C. B. K S. 287; 30 L. J. C. P. 273; 9 
W. E. 612; 4 L. T. 493.) So, again, where the 
damages awarded appear strangely small, a new trial 
will not be granted, unless it is clearly sIioa^ti that the 
jury wholly omitted to take into their consideration some 
element of damage {FhillipB v. London ^^ iS. W. Ry Co.; 
4 Q. B. D. 406; 48 L. J. Q. B. 093 ; 27 W. E. 797 ; 40 
L. T. 813 ; (C. A.) 5 Q. B. D. 78 ; 49 L. J. Q. B. 233 ; 
28 W. E. 10 ; 41 L. T. 121); or unless the smallness of 
the amount shows that the jury made a compromise, and 
did not really try the issues submitted to them. [Falvey 
V. Stanford, L. E. 10 Q. B. 54; 44 L. J. Q. B. 7 ; 23 
W. E. 162; 31 L. T. 677; Kelly v. Sherlock, L. E. 1 
Q. B. 686, 697 ; 35 L. J. Q. B. 209 ; 12 Jui-. K S. 937 ; 
Forsdike and zvife v. Stone, L. E. 3 C. P. 607 ; 37 L. J. 
C. P. 301 ; 16 W. E. 976 ; 18 L. T. 722.) 

The jury must assess the damages once for all : no 
fresh action can be brought for any subsequent damage. 
(Fitter V. Veal, 12 Mod. 542 ; B. N. P. 7 ; Gregory and 
another v. Williams, 1 C. & K. 508.) They should 
therefore take into their consideration ever}- consequence 
wliich the words used would " have a natural tendency" 



GENERAL DAMAGES. 293 

to produce ; but not merely problematical or eventual 
damages that ma^^ jDossibly happen, or j^ossibly may not. 
{Per De Grey, C. J., in Onslow v. Home, 3 Wils. 188; 
2 W. Bl. 753*^; Bayley, B., in Lumhy v. Alldwj, 1 C. & J. 
305 ; 1 T3T. 217, and see Doyley v. Rolerts, 3 Bing. Is^. 
C. 835 ; 5 Scott, 40 ; 3 Hodges, 154.) The jury also 
may faii'ly take into their consideration the rank and 
position in society of the plaintiff, the mode of publica- 
tion, the extent of the circulation of the words com- 
plained of, the fact that the attack was entirely unpro- 
voked, that the defendant could have easily ascertained 
that the charge he made was false, &c. 

Even if no evidence be offered by the plaintiff as to 
damages, the jury are in no way bound to give nominal 
damages only ; they may read the libel and give such 
substantial damages as will compensate the plaintiff' for 
such defamation. (Tripp v. Thomas, 3 B. & C. 427.) 
And where the Statute of Limitations is relied on as a 
defence ; but proof is given that one single copy has 
been sold by the defendant to an agent of the plaintiff 
within the last few months ; the jmy are not to limit 
the damages to the injury Avhich the plaintiff may 
be suj^posed to have incurred from that single publica- 
tion, but may give general damages for the original 
dissemination of the libel. [DuJce of BrunsivicJc v. 
Harmer, 14 Q. B. 185; 19 L. J. Q. B. 20; 14 Jur. 
110; 3 C. & K. 10.) 

A general loss of business by a trader in consequence 
of defamation is general damage which the law presumes ; 
but no particular instances, can be gone into, unless the 
customers' names be given in the statement of claim, or 
in the particulars ; for this is special damage, and must 
therefore be laid specially. [Ashley v. Harrison, Peake, 
256 ; 1 Esp. 48 ; Delegal v. Hiyhlejj, 5 Scott, 154 ; 8 C. 
&P. 444; 3 Bing. N. C. 950.) 



294 DAMAGES. 

In cases of libel, every one concerned either in writing 
or pnblisliing the libel, or in cansing or procnring the 
libel to be written or pnblished, is equally liable for all 
the damage consequent on that publication. They are 
all deemed publishers. Thus, if the libel appear in 
a news23apcr, the proprietor, the editor, the printer, and 
the author, are all liable to be sued, either separately or 
together. And that one has been ah*eady sued is no de- 
fence to an action brought against any of the others in 
respect of the same libel. [Frescoe v. 'J/c/,y, 2 F. & F. 
123.) Xor should the fact that other actions are pending 
for the same libel be taken into consideration by the jury 
in assessing the damages arising fi'om the publication by 
the present defendant. (Harrison v. Pearce, 1 F. & F. 
567 ; 32 L. T. (Old S.) 298.) And there is no contribu- 
tion between tort-feasors. So that the proprietor of a 
paper sued jointly Tvith his careless editor or with the 
actual composer of the libel, cannot compel either of liis 
co-defendants to recoup him the damages, which he has 
been compelled to pay the plaintiff. ( Colhurn v. Patmore^ 
1 C. M. &E. 73; 4 Tyr. 077.) 

But if there be two distinct and separate publications 
of the same libel, a defendant who was concerned in the 
first publication, but wholly unconnected with the second, 
would not be liable for any damages wliich he could proye 
to have been the consequence of the second publication 
and in no way due to the first. 

In cases of slander, on the other hand, the defendant 
is only liable for such damages as result dii'cctly from 
his o^\Ti utterance. If another chooses to repeat what 
defendant has said, that is his own conscious and volun- 
tary act, for the results of which he alone is responsible. 



In former days, it was the rule that if there were several 
counts on different libels or slanders, and entire damages were 



GENERAL DAMAGES. 295 

given, judgment would be arrested, and a venire, tie novo 
awarded, if a single count proved for any reason defective. In 
criminal cases the rule has always been the reverse, and the 
judgment stands if a single count prove good. The judges 
often expressed a wish that the rule in civil cases was the same 
as in criminal ; but the authorities to the contrary were too 
clear and decisive. (Savile v. Jardine, 2 Hen. Bl. 531 ; Holt 
V. Scholefield, 6 T. R. 694 ; Aiigle v, Alexander, 7 Bing. 119 ; 
1 Tyr. 9 ; 1 C. & J. 143 ; Day v. Rohinson, 1 A. & E. 554 ; 
4 N. & M. 884 ; Pemherton v. Colls, 10 Q. B. 401 ; 16 L. J. 
Q. B. 403; 11 Jur. 1011.) 

It was therefore the duty of the plaintiff's counsel formerly 
to endeavour to have the damages assessed on each count 
separately, if he had any doubt as to sufficiency of any particular 
count. But now declarations and counts are abolished, and I 
apprehend this rule does not apply to the modern statement 
of claim ; though as yet there has been no decision on the 
point. 

The jury in assessing damages ought not to take into 
consideration the question of costs. They fi'equently 
ask a judge what amount will carry costs ; but it seems 
it is the duty of a judge not to inform them. [Kelly v. 
Sherlock, L. E. 1 Q. B. 686, 691 ; 35 L. J. Q. B. 209 ; 
12 Jur. N. S. 937 ; Wilson y. Reed and others, 2 F. & F. 
152.) Though Erie, C. J., gave the jury such informa- 
tion in Atthill v. Soman, on the ISTorfolk Cii'cuit, 15 L. T. 
36, and in Walcelin v. Morris, 2 F. & F. 26. And see 
Grater v. Collard, 6 DoAvl. 503. And indeed now as the 
costs are practically in the discretion of the judge, it 
would be difficult to answer the question. (See the next 
chapter, pp. 334, 6.) 



296 DAMAGES. 



II. — Evidence for the Plaintiff in Aggravation of 

Damages. 

(i.) Malice. 

The fact that the defamation was deliberate and 
malicious, will of course enhance the damages. All the 
circumstances attending the publication may therefore 
be given in evidence; and any previous transactions be- 
tween the plaintiff and the defendant which have any 
direct bearing on the subject-matter of the action, or are 
a necessary part of the history of the case. But it does 
not follow that every piece of evidence which has been 
declared admissible to prove malice when malice is in 
issue (see Chaj)ter IX.), is also admissible in aggravation 
of damages when there is no question as to the de- 
fendant's motive or intent. Thus evidence may be given 
of antecedent or subsequent libels or slanders to show 
that a communication primd facie privileged was made 
maliciously (c. IX., p. 272) ; and also when evidence is 
necessary to explain the meaning of language which 
without it apjiears ambiguous (c. III., p. 113). But such 
evidence may not be given where the existence of malice 
is undisjDuted, and the words of the libel are clear. 
[Stuart V. Lovely 2 Stark. 93 ; Pearce v. Onishy^ 1 M. & 
Eob. 455 ; Summons v. Blalcc, ih. 477 ; 2 C. M. & E. 416 ; 
4 Dowl. 263 ; 1 Gale, 182.) And when such evidence 
is admissible, the jury should always be cautioned to 
give no damages in respect of it. [Per Tindal, C. J., in 
Pearson v. Lemaitre, 5 M. & Gr. 719 ; 12 L. J. Q. B. 
253.) But if a subsequent libel has immediate reference 
to the one sued on, it may be admitted as a necessary 
.part of the res gcsta\ if the judge considers it as bearing 
: directly on the matter in hand. [Finnerty v. Tipper^ 2 



EVIDENCE IN AGGRAVATION. 297 

Camp. 72 ; May v. Bvoimi, 3 B. & Cr. 113 ; 4 D. & E. 

670.) 

The defendant's conduct of his case, even the language 
used by his counsel at the trial, may aggravate the 
damages. {Fer Pollock, C. B., Davlij v. Ouseley^ 25 
L. J. Ex. 230, 233; BlaJce v. Stevens and others, 4 
F. & r. 235 ; 11 L. T. 543 ; Risk Atlali Bey v. ^Yllite- 
hurst, 18 L. T. 615.) So a plea of justification, if not 
proved, will enhance the damages. {Simpson v. Rohin- 
son, 12 a B. 511; 18 L. J. Q. B. 73; 13 Jui-. 187. 
See ante, p. 274.) 

If other words, not actionable per se, yet highly in- 
jui'ious, were uttered on the same occasion as the words 
complained of, these other words may clearly be given 
in evidence as an aggravation of the actionable words, 
and as shewing the animus of the defendant. "Where 
a ^Tongful act is accompanied by words of contumely and 
abuse, the jmy are warranted in taking that into con- 
sideration, and giving retributory damages." {Per 
Byles, J., 10 C. B. N. S. 308.) 

And where there has been no express malice, gross 
negligence on the part of the proprietor of a newspaper 
in allowing the libel to appear in its columns, may be 
proved to enhance the damages. {Smith v. Harrison, 1 
F. & F. 565.) 

But in all these cases the malice proved must be that 
of the defendant. If two be sued, the motive of one 
must not be allowed to aggravate the damages against 
the other. {Clark v. Neivsam, 1 Ex. 131, 139.) Nor 
should the improper motive of an agent be matter of 
aggravation against his principal. {Carmichael\. Water- 
ford and Limerick Ry. Co., 13 Ir. L. E. 313 ; Robertson y. 
Wylde, 2 Moo. & Eob. 101.) 



:98 DAMAGES. 



(ii.) Extent of Puhtication. 

Tlio attention of the jury should be especially directed 
to the mode and the extent of publication. If the libel 
was sold to the public indiscriminately, heavy damages 
should be given, for the defendant has put it out of his 
power to recall or contradict his statements, should he 
desii'e to do so. [Per Lord Denman, 9 A. & E. 149.) 

If the libel has appeared in a newspaper, proof 
that the particular number containing the libel was 
gratuitously cii'culated in the plaintiff's neighbourhood, 
or that its sale was in any way especially pushed, will 
enhance the damages. [GathercoleY. Miall, 15 M. & W. 
319 ; 15 L. J". Ex. 179 ; 10 Jur. 337.) Evidence of the 
mode and extent of publication is admissible with a view 
to damages, even where the publication has been ad- 
mitted on the pleadings. ( Vines v. Serelt, 7 C. & P. 163.) 



(iii.) Plaintiffs Good Character. 

The plaintitF cannot give evidence of general good 
character in aggravation of damages merely, unless such 
character is put in issue on the pleadings ; or has been 
attacked by the cross examination of the plaintiff's wit- 
nesses ; for till then the plaintiff's character is presumed 
good. [Cormvatl Y. Richardson., Ey. & M. 305 ; Guy v. 
Gregonj., 9 C. & P. 584, 7 ; Brine v. Bazalgette^ 3 Ex. 
692 ; is L. J. Ex. 348.) As to when such evidence is 
admissible under special circumstances to show that the 
libel was false to the knowledge of the defendant, and 
must therefore have been written maliciously, see ante^ 
p. 275, Fountain v. Boodle, 3 Q. B. 5 ; 2 G. & D. 455. 



EVIDENCE IN MITIGATION. 



299 



III. EVIDEXCE FOR THE DeFENDAXT IN MiTIGxiTION OF 

Damages. 

(i.) Apologij and Amends. 

By Lord Campbell's Act (G & 7 Vict. c. 9G, s. 1), it is 
enacted "that in any action for defamation it shall be 
la-svf ul for the defendant (after notice in writing of his 
intention so to do, duly given to the plaintiff at the time 
of filing or delivering the plea in such action), to give in 
evidence, in mitigation of damages, that he made or 
offered an apology to the plaintiff for such defamation 
before the commencement of the action, or as soon after- 
wards as he had an ojDportunity of doing so, in case the 
action shall have been commenced before there was an 
opportunity of making or offering such apology." And 
by s. 2, " that in an action for a libel contained in any 
public newspaper or other j)eriodical publication, it shall 
be competent to the defendant to plead that such libel 
was inserted in such newspaper or other periodical pub- 
lication without actual malice, and without gross negli- 
gence, and that, before the commencement of the action, 
or at the earliest opportunity afterwards, he inserted in 
such newspaper or other periodical publication a full 
apology for the said libel, or if the newspaper or 
periodical publication in which the said libel appeared 
should be ordinarily published at intervals exceeding 
one week, had offered to publish the said apology in any 
newspaper or periodical publication to be selected by the 
plaintiff in such action ; and that every such defendant 
shall, upon filing such plea, be at liberty to pay into 
court a sum of money by way of amends for the injiuy 
sustained by the publication of such libel, .... and 
that to such plea to such action it shall be competent to 
the plaintiff to reply generally, denying the whole of 



300 DAMAGES. 

such plea." (Sec ChadivlcJc \. Ilerajmth, 2 C. B. 885 ; 
16 L. J. C. P. 104 ; 4 D. & L. 653.) Money must be 
paid into Court at the time such a j)leading is delivered, 
or it will be treated as a nullity (8 & 9 Yict. c. 75, s. 2) ; 
though now, no doubt, on good cause shoTvm, a master at 
Chambers would give a defendant leave to pay money 
into Court at any later time under Judicature Act Eules, 
Order XXX. r. 1. 

If the action be remitted to a county court under s. 
10 of the County Courts Act, 1867, the defendant may 
still avail himself of these sections by giving to the 
registrar five clear days before the day fixed for the 
hearing, notice in A^STiting of his intention so to do, signed 
by himself or his solicitor. (kSee County Court Eules, 
1875, Order XX. r. 4.) 

The payment into Court under these sections will in 
no wa}^ operate as an admission of liability, not even to 
the amount paid in, and the jury should be directed to 
assess the damages irrespective of the sum so paid into 
Court. {Jones v. 3facJdr, L. E. 3 Ex. 1 ; 37 L. J. Ex. 1 ; 
16 W. E. 109 ; 17 L. T. 151.) The apology should be 
full, though it need not be abject ; the defendant is not 
bound to insert an apology dictated by the plaintiff ; but 
it must be such as an impartial j^erson would consider 
reasonably satisfactory under all the circumstances of 
the case.' {ElsJc Allah Bey v. Johnstone, 18 L. T. 620.) 
It should be printed in type of ordinary size, and in a 
part of the pajjer Avhere it will be seen; not hidden 
away among the advertisements or notices to corre- 
spondents. {Lafone v. Smith, 3 H. & 'E. 735 ; 28 L. J. 
Ex. 33 ; 4 Jur. X. S. 1064.) The sufficiency or insuffi- 
ciency of an apology is j^eculiarly a question for the 
jiuy.' {Rkk Allah ^Beij v. Johnstone, 18 L. T. 620.) 

But wholly apart from these sections, and with or 
without any apology, a defendant mscy now, under 



APOLOGY. ' 301 

Order XXX. of the Judicature Act Eules, pay money into 
Coui't in any action by way of satisfaction or amends, at 
any time between service of the writ, the time of de- 
livering his defence, or by leave of a master at Chambers 
at any later time. If such payment be made before de- 
livering his statement of defence, he should at once give 
the plaintiff notice that he has paid in such money ; and 
in any and every case he should plead the fact of pay- 
ment into Court in his statement of defence. Such 
payment will in no way operate as an admission of lia- 
bility [Berdan v. Greenwood^ 3 Ex. D. 251 ; 47 L. J. 
Ex. 628 ; 26 W. E. 902 ; 39 L. T. 223) ; and any other 
defence can be pleaded at the same time, even a justifi- 
cation. (^IlaivJcesley v. Bradshaiv (C.A.), 5 Q. B. D. 302 ; 
49 L. J. a B. 333; 28 W. E. 557; 42 L. T. 285; 
overruling O^BrienY. Clement, 15 M. & W. 435 ; 15 L. J. 
Ex. 285; 3 D. & L. 676 ; 10 Jur. 395; and Barry v. 
M'Grath, Ir. E. 3 C. L. 576.) 

Illustrations. 

To an action for libel in a newspaper, the defendant pleaded a defence 
imder 6 & 7 Vict. c. 96, s. 2, and paid £5 into Court. The jury found the 
apology insufficient, and awarded the plaintiff %)s. damages. Hdd that the 
plaintiff was only entitled to £\, as he had not accepted the £5, and taken 
it out of Court. 

Jones V. Mackie, L. R. 3 Ex. 1 ; 37 L. J. Ex. 1 ; 16 W. R. 109 ; 

17 L. T, 151. 
See also Lafone v. Smith and others, 3 H. & N. 735 ; 28 L. J. 
Ex. 33 ; 4 Jur. N. S. 1064 ; 4 H. & N. 158 ; 5 Jur. N. S. 127. 



(ii.) Absence of Mcdice. 

As a rule, unless the occasion be privileged, the motive 
or intention of the speaker or writer is immaterial to the 
right of action : the Court looks only at the words em- 
ployed and their effect on the plaintiff's reputation. But 
in all cases, the absence of malice, though it may not be 



302 DAMAGES. 

a bar to the action, may yet have a material effect in 
redncing the damages. The plaintiff is still entitled to 
reasonable compensation for the injury he has suffered ; 
but if the injury was unintentional, or was committed 
under a sense of duty, or through some honest mistake, 
clearly no vindictive damages should be given. In 
every case therefore the defendant may, in mitigation of 
damages, give evidence to show that he acted in good 
faith and with honesty of purpose, and not maliciously. 
He may show that the remainder of the libel not set out 
on the record modifies the words sued on ; or that other 
passages in the same publication qualify them. But he 
may not put in passages contained in a subsequent and 
distinct publication, unless the words sued on are equi- 
vocal or ambiguous. {^CooJc v. Hughes^ R. & M. 112; 
Dat-hy V. Ouseley, 1 H. & IN". 1 ; 25 L. J. Ex. 227 ; 2 
Jur. :N'. S. 497.) The fact that the defendant did not 
originate the libel, but innocently repeated it, should tell 
in his favour. Thus, where it apj^ears on the face of a 
libel that it is founded on a statement in a certain news- 
paper, the defendant is entitled to show that he did in 
fact read such statement in that newspaper, and ^\Tote 
the libel believing such statement to be true. (i?. v. 
Burdett, 4 B. & Aid. 95; MuUettx. Ilulton, 4Esp. 248.) 
So, if in the libel the defendant has named A. as his 
informant, he may prove in mitigation that he did in 
fact receive such information from A. (though of course 
this is no defence to the action ; ante^ p. 1G2.) (Scmble, 
2JC)' Gibbs, C. J., in 3IiUs and wife v. Sjjenccr and wife 
(1817) Holt, ^^. P. 533; Fast v. Chapman, M. & M. 
4G ; 2 C. & P. 570 ; Charlton v. Walton, G (\ & P. 385 ; 
Bennett v. Bennett, 6 C. & P. 588 ; Duncornhe v. Daniell, 
2 Jur. 32 ; 8 C. & P. 222 ; 1 W. W. & H. 101 ; cited 
7 Dowl. 472 ; Davis v. Cutbush and others ; 1 F. & P. 
487.) But where the libel does not, on the face of it. 



ABSENCE OE MALICE. 303 

purport to be derived from any one, but is stated as of 
the writer's own knowledge, there evidence is wholly 
inadmissible to sliow that it was copied from a news- 
paper or communicated by a correspondent. ( Talhutt v. 
Clarlc and another^ 2 Moo. and Eob. 312.) Evidence 
that in another action the plaintiff had already sued A. 
the informant and recovered heavy damages, is altogether 
inadmissible. [Creevjj y. Carv^ 7 C. & P. G4.) But if 
the defendant can show that in coj)ying the libel from 
another newspaper, he was careful to omit certain pas- 
sages which reflected strongly on the plainti:ff, his conduct 
in making such omissions is admissible as showing the 
absence of all animus against the plaintiff, and this neces- 
sarily involves the admissibility of the original libel 
copied. ( Creevy v. Carr^ 7 C. & P. 64 ; Creighton v. 
Finlau, Arm. Mac. & Ogle (Ir.) 385.) 

I have thus attempted to reconcile cases which are generally 
considered in conflict. In Talhatt v, Clarlc, 2 Moo. & Rob. 
312, Lord Dennian says : — -"I know that in a case in the Com- 
mon Pleas it has been held that a previous statement in another 
newspaper is admissible ; but even that decision had been very 
much questioned." His Lordship probably referred to Saunders 
V. Mills, 6 Bing. 213 ; 3 M. & P. 520. And thereupon Mr. 
Pitt-Taylor, in the last edition (1878) of his Law of Evidence, 
p. 316, remarks : " However, by the subsequent recognition of 
Saunders v. Mills, in Pearson v. Lemaitre, 5 M. & Gr. 719, 
the case of Talhutt v. Clark would seem to be indirectly over- 
ruled." But with all deference to that learned writer, the 
decision in Saunders v. Mills was that evidence that many 
other papers besides the defendant's had also copied the state- 
ment from the Observer was i^iadmissible ; evidence that 
defendant had copied it from the Observer into his own paper 
had been admitted apparently without question at the trial ; and 
in allowing that evidence, Tindal, C.J., says (6 Bing. 220) : " It 
appeared to me I had gone the full length." There is no real 
conflict between the decisions in Saunders v. Mills or Pearson 



304 DAMAGES. 

V. Lemaitre and that in TalhiUt v. Clark. I think, therefore, 
that the last case must still be regarded as good law. 

Illustrations. 

The defendant pui)li.-ilied an inaccurate report of proceedings in a court of 
justice, reflecting on the character of the plaintiff ; any evidence to show 
that the defendant honestly intended to present a fair account of what took 
place, and had blundered through inadvertence solely, was held admissible 
by Coleridge, J. 

Smith v. Scott, 2 Car. & Kir. 580. 
And, therefore, evidence of Avhat really did take place at the trial is 
admissible ; though no evidence can be given of the truth or falsehood of 
the statements there made. 

East V. Chapman, M. & M. 46 ; 2 C. & P. 570. 
Vessey v. Pike, 3 C. & P. 512. 
Where a newspaper published the report of a company containing reflec- 
tions on the plaintitt', their manager, Wightman, J. directed the jury that if 
they were satisfied suuh publication was made innocently, and with no 
desire to injure the plaintiff, they might give nominal damages only. 
Davis V. Cutbush and others, 1 ¥. & F. 487. 
On the day of the nomination of candidates for the representation of the 
borough of Finslaxry, the defendant published in the Morning Post certain 
fiicts discreditable to one of the candidates, the plaintiff", which he alleged 
lie had heard from one Wilkinson at a meeting of the electors. Held, that 
AVilkinson was an admissible witness to prove, in mitigation of damages, 
that he did in fact make the statement which the defendant had published 
at the time and place alleged. 

JJancomhe v. JJaniell, 2 Jur. 32 ; 8 C. & P. 222 ; 1 W. W. & H. 
101. 



(iii.) Evidence of tlie plamtlf s had character. 

There has been a great conflict of opinion as to the 
admissibility of evidence of the plaintiff's general bad 
character, and of rniiionrs prejndieial to his reputation. 
There is no doubt as to the general rule that circum- 
stances, which, if pleaded, would have been a bar to the 
action, cannot be given in evidence in mitigation of 
damages. [Speck \. FJiilUps., 7 Dowl. 470.) Evidence 
of the truth of the slander or libel is therefore inadmis- 
sible, unless a justification is pleaded. ( Undenvood v. 



PLAINTIFF'S BAD CHARACTFR. 



305 



ParliS^ 2 Str. 1200.) Evidence of a rumour that the 
jDlaiiitifF had in fact committed the offence charged 
against him clearly falls short of a justification, and is 
moreover objectionable also as hearsay. On the other 
hand, the gist of the action is the injury done to the 
plaintiff's reputation ; and if the plaintiff had no reputa- 
tion to be injured, surely he cannot be entitled to sub- 
stantial damages. It seems therefore that evidence of 
the plaintiff's general bad character may be given in 
mitigation of damages, but the defendant may not go 
into particulars. {Williams v. Callender (1810), Holt, 
N. P. 307, 11. ; Mills and luife v. Spencer andtvife (1817), 

Holt, N. P. 533; v. 3Ioor, 1 M. & S. 284; 

Wail/man v. Weaver, D. & E. N. P. C. 10 ; 11 Price, 
257, n. ; Rodriguez v. Tadmire, 2 Esp. 721; contra, Jones 
V. Stevens, 11 Price, 235 ; wherein the case of Earl of 
Leicester v. Walter, 2 Camp. 251, is denied to be 
law; Snoivdon Y. Smith, 1 M. & 8. 280, n.; Woolmer 
V. Latimer, 1 Jur. 119 ; Bracegirdle v. Bailey, 1 F. & F. 
536.) If, however, the plaintiff goes into the box, he 
can of course be cross-examined "to credit" on all 
the details of his previous life ; but nnless such details 
are material to the issue the defendant must take the 
plaintiff's answer and cannot call evidence to contra- 
dict it. 

Eumours as to plaintiff's general bad character will 
not however be admissible in evidence unless they be 
sho^\ii to have existed previously to the alleged slander 
or libel ; for otherwise they may have been occasioned by 
the defendant's own publication, in which case they should 
rather aggravate than diminish the damages. {Thomp- 
\ son V. JVge, IG Q. B. 175 ; 20 L. J. Q. E. 85 ; 15 Jur. 
:' 285.) The law on this point was much discussed in 
Bell V. I^ar/ce, 11 Ir. C. L. E. 413 ; and it was decided 
that evidence of antecedent_^nera]^ reputation of plain- 



3o6 DAMAGES. 

tiff's bad character is admissible, and so is evidence that 
\\\Q plaintiff had certain vicious habits Avhich would lead 
him to commit such acts as that ascribed to him in the 
slander. But that evidence of a general report that 
jDlaintiff had actually committed the particular offence 
charged by the slander was not admissible. The fol- 
lowing Nisi Prius decisions must therefore be con- 
sidered bad law : — Earl of Leicester v. Walter^ 2 Camp. 
251; Richards v. Richards^ 2 Moo. & Eob. 557; Chalmers 
V. ShacJcell and others, 6 C. & P. 475 ; and Knohell v. 
Fuller, Peake's Add. Cas. 139. 

As to justifying part of the words complained of in 
mitigation of damages, see ante, p. 176. 

Illustrations. 

One officer charged another with stealing a watch ; a third officer in the 
same regiment was called to state that he had previously heard rumours 
that the plaintiff had stolen that watch, but his evidence was rejected : and 
the Court held that such rejection was right (Pigot, C.B., dissenting). 
BM V. Parke (1860), 11 Ir. C. L. R. 413. 
The L(jrd Chief Baron is reported to have given a similar ruling in 
Dolede v. Fisher, Times for July 29th, 1880. 



(iv.) Rlaintiffh iircvioiis conduct in provoking the 
imhlication. 

In some cases, so we have seen, the plaintiff's conduct 
towards the defendant may be a bar to the action. If 
the plaintiff has attacked the defendant in the news- 
paper, and the defendant replies without undue person- 
ality, and without wandering into extraneous matters, 
then such reply, if made honestly in self-defence, is 
privileged. (See ante, p. 228.) But where the facts do 
not amount to such a defence, they may still tend to 
mitigate the damages. " There can be no set-off of one 
libel or misconduct against another ; but in estimating 



PR VO CA riON. .cr 

the compensation for the plaintiff's injured feelings, the 
jury might fairly consider the plaintiff's conduct, and 
the degree of respect he has shown for the feelings of 
others." (Fer Blackburn, J., in Kelhj v. Sherlock^ L. E. 
1 Q. B. 698; 35 L. J. Q. B. 213; 12 Jur. N. S. 937.) 
Thus evidence is admissible in mitigation of damages to 
show that plaintiff had previously himself published a 
libel, provided it be also shown that this libel had come 
to the defendant's knowledge and occasioned the publi- 
cation of the libel now sued on. [Flnnert/j v. Tipper^ 2 
Camj). 76 ; Antony PasquMs case^ cited 1 Camp. 351 ; 
Taiplcy V. Blahey, 2 Bing. N. C. 437 ; 2 Scott, 642 ; 3faij 
V. Broivn, 3 B. & C. 113; 4 D. & E. 670 ; Watts v. Fraser, 
7 A. & E. 223 ; 7 C. & P. 369 ; 1 M. & Eob. 449 ; 2 K & 
P. 157 ; WaJdey v. Johnson, Ey. & M. 422.) And under 
the new system of pleading inaugurated by the Judica- 
ture Act such previous libels may be made the matter 
of a counter-claim, even though not immediately con- 
nected with the words on which plaintiff is suing ; and 
the defendant may thus not only reduce the amount of 
damages due to the plaintiff, but even overtop the 
plaintiff^'s claim and recover judgment for the balance. 
{Quin V. Hession, 40 L. T. 70 ; 4 L. E. Ir. 35.) And 
where there is no counter-claim, the previous conduct of 
the plaintiff' may be ground for applying to the Judge to 
deprive him of costs. In Harnett v. Vise and luifc, 5 Ex. 
D. 307; 29 W. E. 7, Huddleston, B., deprived a plaintiff 
of his costs on this ground ; although the jmy found that 
the plea of justification Avas not proved, and had given 
him damages £10. And this decision of the learned 
Baron was upheld both in the Exchequer Division and 
in the Court of Appeal. 



X 2 



3o8 DAMAGES. 

(v.) Absence of Special Damage. 

When any special damage is alleged, the onus of 
proving it lies of coui-se on the plaintiff... The defendant 
may call evidence to rebut the plaintiff's proof. He 
may either dispute that the special damage has occurred 
at all, or he may argue iis a point of laAV that it is too 
remote (seo jwst, p. 321); or he may call evidence to 
show that it was not the consequence of the defendant's 
words, but of some other cause. Thus if two newspapers 
have made each a distinct charge against the plaintiff, 
and subsequently the plaintiff finds his business falling 
off, whichever paper he sues may endeavour to shew 
that the loss of trade is due to the charge made against 
the plaintiff' by the other paper. But, generally speak- 
ing, a defendant does not call evidence to rebut the 
special damage, but relies upon the cross-examination of 
the plaintiff' 's witnesses. 



IV. Special Daitage w^here the words are not 

ACTIONABLE JiJ*^;' SC. 

Special Damage is such a loss as the law will not 
presume to have folloAved from the defendant's words ; 
but which dej)ends, in j)art at least, on the special cii'- 
cumstances of the case. It must therefore be proved by 
evidence at the trial ; and should ahvays be explicitly 
claimed on the pleadings. In the vast majority of cases 
proof of special damage is not essential to the right 
of action. Thus it is not necessary to prove special 
damage — 

(i.) In any action of libel. 

(ii.) Wherever the words spoken impute to the plain- 
tiff the commission of any indictable offence. 



SPECIAL DAMAGE. 309 

(iii.) Or a contagious disease. 

(iv.) Or are spoken of him in the way of his profession 
or trade ; or disparage him in an office of public trust. 

Such words from their natural and immediate tendency 
to produce injury, the law adjudges to be defamatory, 
although no special loss or damage is, or can be, proved. 
Though even in these cases, if any special damage has in 
fact accrued, the plaintiff may of course prove it to 
aggravate the damages. 

But in all cases not included in any of the above four 
classes, proof of special damage is essential to the cause 
of action ; Jor the words are not actionable iicr se. The 
words do not, apparently and upon the face of them, im- 
port such defamation as will of course be injurious ; it is 
necessary, therefore, that the plaintiff should aver some 
particular damage to have hai3pened. And to maintain 
the action the damage thus averred must be the natural^ 
immediat e, and legal consequence of the words which the 
defendant uttered. It is not enough that his words have 
in fact produced such and such damage, unless it can 
reasonably be presumed that the defendant, when he 
uttered the words, either knew, or ought to have known, 
that such damage would result. Such damage being 
essential to the action, must have accrued before action 
brought. 

The special damage necessary to support an action for 
defamation Avhere the words are not actionable in them- 
selves, must be the loss of some material temporal ad- 
j^antage. The loss of a marriage, of employment, of 
custom, of profits, and even of gratuitous entertainment 
and hospitality, will constitute special damage ; but not 
mere annoyance or loss of peace of mind, nor even 
physical illness occasioned by the slanderous report. 

Such loss may be either the loss of some right or 
position already acquired, or the loss of some future 



3IO ■ DAMAGES, 

benefit or advantage the acquisition of wliich is preycntecl. 
Thus if the defendant causes a servant to lose his situa- 
tion, or prevents his getting one, by maliciously giving a 
false character ; in either case an action will lie, though 
the words be not actionable fer se. So if he prevent 
either a new comer from going to the plaintiff's shop, or 
an old customer from continuing to deal there. But i n 
either case, and in every other, it must be clearly proved 
that the loss is the direct result of defendant's words. 

Illustrations. 

Anthony Elcock, citizen and mercer of London, of the substance and 
vahie of J3i)00, sought Anne Davis in marriage ; but the defendant 
jjrremissorum haml irjiiarns, accused her of incontinency, -wherefore the said 
Anthony wliolly refused to marry the said Anne. Held, sufficient special 
damage. Verdict for the plaintiff for 200 marks. 

Davis V. Gardiner, 4 Eep. 16 ; 2 Salk. 294 ; 1 Roll. Abr. 38. 
So if a man lose a marriage. 

Matthev) v. Crass, Cro. Jac. 323. 
In consequence of defendant's slandering the plaintiff, a dissenting 
'minister, his congregation diminislied : but tliis was held insufficient, as it 
did not appear that the plaintiff lost any emolument thereby. 

Hoimood V. Thorn, 19 L. J. C. P. 94 ; 8 C. B. 293 ; 14 Jur. 87. 
But s6e Hartleij v. Herring, 8 T. R. 130. 
" If a divine is to be presented to a benefice, and one to defeat him of it, 
says to the patron, ' that he is a heretic, or a bastard, or that he is excom- 
municated,' by which the patron refuses to present him (as he Avell might 
if the imputations were true), and he loses his preferment, he shall have his 
action on the case for those slanders tending to such end." 
Davis V. Gardiner, 4 Rep. 17. 
Loss of a situation will constitute special damage. 

Martin v. Btromj, 5 A. & E. 535 ; 1 N. & P. 29 ; 2 H. & W. 
336. 
Or of a chaplaincy. 

Payne v. Beauwmorris, 1 Liv. 248. 
If, however, the dismissal from service be colourable only, the master 
intending to take the plaintiff back again, as soon as the action is over : 
this is no evidence that the plaintiff's reputation has been impaired, but 
rather the contrary. If, therefore, no other special damage can be proved, 
the plaintiff should be nonsuited. 

Coward v. Wellington, 7 C. & P. 531. 
If a man be refused employment through defendant's slander, this is 
sufficient special damage. 

Sterry v. Foreman, 2 Car. & P. 592. 



I 

1 



SPECIAL DAMAGE. 311 

Sii, if the agent of a certain firm going to ileal witli the plaintiff Le 
stopi^ed and dissuaded by the defendant, and this, altlioiigh such firm 
subsequently became bankrupt, and paid but 12s. 6fZ. in the ,£, so that had 
plaintiff obtained the order he would have lost money by it. 

Etormj V. Cludlands, 8 C. & P. 234. » 

The loss of the hospitality of friends gratuitously afforded is sufficient 
special damage. 

Mnorr V. Meagher, 1 Taunt. 39 ; 3 Smith 135. 
Danes and tdfe v. Solomon, L. E. 7 Q. B. 112 ; 41 L. J. Q. B. 10; 
20 W. E. 167 ; 25 L. T. 799. 
So is the loss of any gratuity or present, if it be clear that the slander 
alone prevented its receipt. 

Bracebridge v. Watson, Lilly, Entr. 61. 
Earth]! v. Herring, 8 T. E. 130. 
In consequence of defendant's vi^ords, a friend who had previously 
voluntarily promised to give the plaintiff, a married woman, money to 
enable her to join her husband in Australia, whither he had emigrated 
three years before, refused to do so. Held, sufficient special damage. 
Corcoran and wife v. Corcoran, 7 Ir. C. L. E. 272. 
Where a vicar in open church falsely declared that the plaintiff, one of 
his parishioners, was excommunicated, and refused to celebrate divine 
service till the plaintiff departed out of the church, whereby the plaintiff 
was compelled to cj^uit the church, and was scandalized, and was liindered 
of hearing divine service for a long time ; it was held that an action lay. 
Barnabas v. Traunter (1641), 1 Vin. Abr. 396. 
But a mere apprehension of future loss cannot constitute special damage./ 1 
" I know of no case where ever an action for words was grounded upoioj j 
eventual damages which may possibly happen to a man in a future situaJ i 
tion," says De Grey, G.J., in 

Onsloio V. Home, 3 Wils. 188 ; 2 W. Bl. 753. 
And see Doijleif v. Roberts, 3 Bing. N. C. 835 ; 5 Scott, 40 ; 3 
Hodges, 154. 
The defendant said of a married man that he had had two bustards : 
" by reason of which words discord arose between him and liis wife, and 
they were likely to have been divorced." Held, that this constituted no 
special damage. 

Barinund's Case, Cro. Jac. 473. 
But where the defendant advertised in Htie and Cry that the plaintiff 
liad been guilty of fraud, and offered a reward for his appreliension, and 
the plaintiff immediately sued on the libel, and after action brought was 
twice arrested in consequence of it ; he was allowed to give evidence of 
these two arrests at the trial, not indeed as special damage, for they liappened 
after action brought, but in order to show the injurious nature of the libel, 
and that the plaintiff was at time of action brought in serious danger ol 
being arrested. 

Goslin v. Corry, 7 M. & Gr. 342 ; 8 Scott, N. E. 21. 
And see Ingram v. Lawson, 6 Bing. N. 0. 212 ; 8 Scott, 471 ; 9 
G. & P. 326 : 4 Jur. 151. 



312 DAMAGES. 

So where the words are not actionable j;er se, and no pecuniary damage 
has followed, no compensation can be given for outraged feelings, nor for 
sickness induced by such mental distress, even though followed by a doctor's 
bill. 

Alhop V. Allsop, 5 H. & N. 534 ; 29 L. J. Ex. 315 ; 6 Jur. N. 

433 ; 8 W. E. 449 ; 36 L. T. (Old S.) 290. 
Lynch v. Knight and ivife, 9 H. L. C. 577 ; 8 Jur. N. S. 724 ; 5 
L. T. 291. 
Nor will the fact that plaintiff has been expelled from a religious 
society of which she was a member, constitute special damage. 

Boherts et ux. v. Roberts, 5 B. & S. 384 ; 33 L. J. Q. B. 249 ; 10 
Jur. N. S. 1027 : 12 W. E. 909 ; 10 L. T. 602. 
Loss of the consortium of a husl^and is special damage. Per Lords Camp- 
bell and Cranworth in 

Lynch v. Knight and wife, 9 H. L. C. at p. 589 • 
1 JiJii32i-™£t^lj-ftOiiQ- society of friends and neighbom-s. 1 ) 

\ Medhurst v. Balam, cited in 1 Siderfin 397. ]] 

Barnes v. Prudlin or Bruddel, 1 Lev. 261 ; 1 Sid. 396 ; 
1 Ventr. 4 ; 2 Keb. 451. 



The law is the same in America. 



The refusal of civil entertainment at a pul)lic-house was held sufRciont 
special damage. 

Olmsted v. Miller, 1 Wend. 506, 

So was the fact that the plaintiff was turned away from the house of her 
uncle, where she had previously l)een a welcome visitor, and charged not to 
return till she had cleared up her character. 
Williams v. Hill, 19 Wend. 305. 

So was the circumstance that persons who had been in the habit of so [ 
doing refused any longer to p^o^^de food and clothing fi)r the plaintiff. 
Beach v. Ranney, 2 Hill (N. Y.) 309. 

The defendant told Neiper that the plaintiff committed adulter}^ with 
Mrs. Fuller. Neiper hail married Mrs. Fuller's sister and was an intimate 
friend of the plaintiff's. Neiper thought it his duty to tell the plaintiff 
what people were saying of him. Plaintiff, who was hoeing at the time, 
turned pale, felt bad, flung do^\^l his hoe, and left the held : lost his appetite, 
turned melancholy, could not work as he used to do, and had to hire more 
help. Held, that such mental distress and physical illness were not suffi- 
cient to constitute special damage ; for they did not result from any injury 
to the plaintiff''s reputation, which had affected the conduct of others towards 
him. The Court said, in giving judgment, " It would be highly impolitic 
to hold all language, wounding the feelings and affecting unfavourably the 
health and ability to labour, of another, a ground of action : for that would 
be to make the right of action depend often upon whether the sensibilities 
of a person spoken of are easily excited or otherwise ; his strength of mind 



COSTS. 335 

recovered less tlian 40s. damages could not recover any costs 
whatever from the defendant unless the judge immediately 
certified on the record that the slander or libel was wilful and 
malicious. But even if the judge certified both that the action 
was one fit to be tried in the Superior Court, and also that the 
slander was wilfvd and malicious, so as to take the case out of 
both the 30 & 31 Vict. c. 142, s. 5, and the 3 & 4 Vict. c. 24, 
s. 2, still no certificate could enable a plaintiff to get more costs 
than damages if he sued for a slander actionable per se, and 
recovered less than 40s. (Evans v. Uees, 9 C. B. N. S. 391 ; 
30 L. J. C, P. 16 ; Marshall v. Martin, L. R. 5 Q. B. 239 ; 
39 L. J. Q. B. 85 ; 18 W. R. 378 ; 21 L. T. 788.) For the 
relentless words of the 21 Jac. I. c. 16, contain no proviso 
enabling a judge to make any exemption from the imperative 
rule that a plaintiff, suing on the case for slanderous words, and 
recovering less than 40s., shall have " only so much costs as the 
damages so given or assessed amount unto," This statute, 
21 Jac. I. c. 16, was held to apply only to words actionable 
per se, and not to actions of libel, of slander of title, of scan- 
dalum magnatum, or where the words are actionable only by 
reason of special damage alleged. 

But both the 21 Jac. I. c. 16 and the 3 & 4 Vict. c. 24, s. 2, 
and all special Acts relating to costs, are now repealed by s. 33 
of the Judicature Act, 1875 (Parsons v. Tinling, 2 C. P. D. 
119; 46 L. J. C. P. 230; 25 W. R. 255; 35 L. T. 851 
Gar7iett v. Bradley (C. A), 2 Ex. D. 349 ; 46 L. J. Ex. 545 
25 W. R. 653 ; 36 L. T. 725 ; (H. of Lds.) 3 App. Cas. 944 
48 L. J. Ex. 186 ; 26 W. R. 698; 39 L. T. 261; Ex parte 
Mercers Company, 10 Ch. D. 481 ; 48 L. J. Ch. 384 ; 27 
W. R. 424 ; while the County Courts Act, 1867, is, by the 
express words of s. 67 of the Judicature Act of 1873, restricted 
to actions in which relief can be given in a County Court ; and 
slander and libel are not among such actions (County Courts 
Act, 1846 (9 & 10 Vict. c. 95), s. 58). 

Hence now, if a plaintiff recovers nominal damages 
merely, he will get his costs, unless the Judge or a 
Divisional (Jourt otherwise orders. It is therefore the 
duty of defendant's counsel at once to apply for such an 



336 COSTS. 

order, or at least at the same sitting of the Coui't. 
{Kjjnaston v. Macldnder, 47 L. J. Q. B. 76 ; 37 L. T. 
390.) He cannot apply to that Judge subsequently, nor 
to a Judge at chambers. [Balcer v. OaTaes (C. A.), 2 
Q. B. D. 171 ; 46 L. J. 246 ; 25 W. E. 220 ; 35 L. T. 
832 ; Tijne Alkali Co. v. Laivson, 36 L. T. 100 ; W. X. 
1877, p. 18 ; ForsdlJce and ivife v. Stone, L. E. 3 C. P. 
607 ; 37 L. J. C. P. 301 ; 16 W. E. 976 ; 18 L. T. 
722.) If no aj^plication be made at the trial, the only 
chance is to apply to a Divisional Court, which has 
under Order LY. an original jurisdiction to make an 
order to deprive a successful plaintiff of the costs of an 
action tried before a jiuy. (Jlf/ers v. Defries ; Siddons v. 
Laivrence.i^^. D. 176; 48 L.J. Ex. 446; 27 W. E. 
791 ; 40 L. T. 795.) 

But such an applicatiou must be made within a reasonable 
time. (Kynaston v. Mackinder, 47 L. J. Q. B. 76 ; 37 L. T. 
390 ; Boivey v. Bell, 4 Q. B. D. 95 ; 48 L. J. Q. B. 161 ; 27 
W. E. 247 ; 39 L. T. 608.) In the three other cases reported 
with Boicey v. Bell, in the first, Brooks v. Israel, the plaintiff 
was eventually allowed his costs on the merits ; and so in the 
second, North v. Bilton ; while in Siddons v. Lawrence the 
plaintiff was eventually deprived of his costs, good cause being 
shown. 

The Judge or Divisional Coiu't will, as a rule, only 
deprive a plaintiff of his costs where " contemptuous " 
damages, such as a farthing or a sliilling, are given. If 
forty shillings or more be given, the law is generally 
allowed to take its course. Though in a recent case 
Huddleston, B., deprived a plaintiff of his costs, where 
the verdict was for £10 damages, and his discretion was 
approved both in the Exchequer Division and in the 
Court of Appeal. [Harnett v. Vise and ivife, (C. A.) 5 
Ex. D. 307 ; 29 W. E. 7.) But there of course the 
circumstances were exceptional. 



COSTS. 337 

And although the rule expressly requires that the 
Judge should ouly interfere as to costs, " upon applica- 
tion made at the trial for good cause shown," it has now 
been decided that the Judge need not wait for any 
express application to be made to him, but may make 
such an order mero motu, if he think proper. [Turner v. 
Heyland, 4 C. P. D. 432 ; 48 L. J. C. P. 53o ; 41 L. T. 
556); provided both parties are still present and have 
an opportunity of arguing the question at the time. 
{Collins V. Welch, 5 C. P. D. 27 ; 49 L. J. 260 ; 28 W. 
E. 208 ; 41 L. T. 785.) It must be assumed that '' the 
counsel in whose favoiu* the order was made was ready 
to apply for it.'' But see 3Iarsden and ivife v. Lancashire 
and Yorkshire Ry. Co., 42 L. T. 631. 

Application for any special costs, such as those of shorthand 
writer's notes, or of a commission abroad, or of a special jury, 
or of photographic copies of the libel, should be made when 
judgment is deUvered. No order will be made as to such costs 
after the judgment has been drawn up ; they must be borne by 
the party ordering them. (Ashiuorth v, Outram, 9 Ch. D. 483 ; 
27 W. R. 98 ; 89 L. T. 441 ; Executors of Sir Roiuland Hill 
V. Metropolitan District Asylum, 49 L. J. Q. B. 668 ; 43 L. T. 
462 ; W. N. 1880, p. 98 ; Davey v. Pemberton, 11 C. B. (N. S.) 
629.) To entertain such an application would substantially be 
to rehear the cause. (In re St. Nazaire Co., 12 Ch, D, 88 ; 27 
W. R. 854 ; 41 L. T. 110.) 

1 presume that the word "judge," in Order LV., r. 1, includes 
the judge of a County Court to which the case is sent for trial ; 
and an under-sheriff executing a writ of enquiry, for they were 
both included in the word "judge " in the 30 & 31 Vict. c. 142, 
s. 5. {Taylor v. Cass, L. B. 4 C. P. 614 ; 17 W. R. 8G0 ; 20 
L. T. G67 ; Craven v. Smith, L. R. 4 Ex. 146 ; 38 L. J. Ex. 90; 
17 W. R. 710 ; 20 L. T. 400.) A master, to whom an action is 
referred with the powers of a judge at Nisi Prius, may, in his 
award, make any order as to costs, not inconsistent with the 
terms of the submission. (Bedivell v. Wood, 2 Q. B. D. 626 ; 
36 L. T, 213.) It is, however, usual in references to give the 



338 COSTS. 

arbitrator power x)ver the costs of the reference and award only, 
leaving the costs of the action to follow the event. (And see 
Frean v. Sargent, 2 H. & C. 293 ; 32 L. J. Ex. 281 ; 11 W. K 
808 ; 8 L. T. 467.) 

These rules as to nominal damages carrying costs 
apply to all courts whatsoever in England and to all 
actions of slander and libel, wherever tried, so long as 
they come before a juiy. Thus, in the Salford Hundred 
Court of Eecord (^w>'?zcr V. Heyland, 4 C. P. D. 432; 
48 L. J. C. P. 535 ; 41 L. T. 556), or in the Liverpool 
Coui't of Passage [KingN. HmvJcesivorth, 4 Q. B. D. 371 ; 
48 L. J. Q. B. 484; 27 W. E. 660; 41 L. T. 411), 
the rule is the same as in the Superior Coui-ts. 

And if at the first trial there was a nonsuit and a 
new trial be granted, which results in plaintiff's favour, 
Order LY. gives him his costs of both trials, if no order 
be made to the contrary. (Creen v. Wright, 2 C. P. 
D. 354 ; 46 L. J. C. P. 427 ; 25 W. E. 502 ; 36 L. T. 
355. Field v. Great Northern Ry. Co., 3 Ex. D. 261 ; 
26 W. E. 817; 39 L. T. 80.) 

But if the Judge chooses to make an order, that order 
is not necessarily that each party should pay his own 
costs. He may on very good cause shown, order that 
the successful plaintiff should pay defendant's costs; 
and where there has been a nonsuit, and a new trial, the 
Judge who tries the case the second time may order that 
the successful plaintiff shall pay the whole costs of both 
trials. {Harris v. Petherick (C. A.), 4 Q. B. D. 611 ; 
48 L. J. 521 ; 28 W. E. 11 ; 41 L. T. 146.) But of 
course such an order would only be made in an extreme 
case. (See Norman v. Johnson, 29 Beav. 77 ; Wootton 
V. Wootto7i, Weekly Kotes, 1869, p. 175.) 

In Harris v. Petherick, 4 Q. B. D. 612, Bramwell, L.J., 
says : " If it were possible to apportion the costs of the issues 



I 



APPORTIONING COSTS. 339 

between the parties, perhaps it would in some cases, especially 
in actions for slander where tljo damages are assessed at a 
farthing, be the most satisfactory manner of concluding a 
litigation in which, at least technically, both the plaintiff and 
the defendant are to blame." And accordingly it has now been 
decided that where the plaintiff joins four distinct causes of 
action in one suit {e.g., malicious prosecution, libel, slander, and 
trespass), and the jury find for the plaintiff damages one 
farthing for the libel, and for the defendant as to the other 
causes of action, the word " event " must be read distributively, 
and the defendant is entitled to tax his costs of the issues found 
for him, unless the Court or a judge otherwise orders. {Myers 
V. Defries, 5 Ex. D. 15, 180 ; 48 L. J. 446 ; 49 L. J. Ex. 206 ; 
28 W. K. 258, 406 ; 41 L. T. 137, 659 ; Davidson v. Gray, 5 
Ex. D. 189, n. ; 40 L. T. 192 ; (C. A.) 42 L. T. 834.) And by 
analogy to these cases, it would appear the right course in some 
cases to apportion the costs of the various issues arising out of the 
same cause of action where it is possible so to do. (See James v. 
Brook, 16 L. J. Q. B. 168 ; Prudhomme v. Fraser, 2 A. & E. 645.) 
Thus, if a defendant in an action of defamation both justified and 
pleaded privilege, and called at the trial ten witnesses in support 
of his plea of justification, all of whom broke down under cross- 
examination, or were confuted by the evidence of plaintiff's 
witnesses, and the jury found that the words were false, and yet 
at the same time it appeared that the occasion of publication 
was clearly a privileged one, and there was no evidence of 
malice, here it would clearly be right that the plaintiff should 
pay the general costs of the action, for he ought never to have 
brought it ; but that all extra costs occasioned by the plea of 
justification being placed on the record should be paid by the 
defendant. (See Skinner v. Slioppee et ux. 6 Bing. N. C. 131 ; 
8 Scott, 275 ; Empson v. Fairfax, 8 A. & E. 296 ; 3 N. & P. 
385 ; Harrison v. Bush, 5 E. & B. 344 ; 25 L. J. Q. B. 99 ; 
2 Jur. N. S. 90.) As the law now stands, the plaintiff would 
have to pay all the costs of the action, unless a special order be 
made to the above effect. But supposing that the judge at the 
trial makes such an order, there are immense practical difficul- 
ties in the way of taxation. It would be difficult for the master, 
who was not at the trial, to determine whether it was, or was 
not, solely in consequence of the plea of justification that a par- 

z 2 



34° COSTS. 

ticular witness was subpcenaed, or a particular page of the brief 
prepared. The only plan would be to tax the costs of the action 
generally, and tlien deduct such sum as the plaintiff could prove 
to have been occasioned by the justification. This is the plan 
adopted in Chancery, where a claim and a counter-claim are 
both dismissed with costs. (See j^ost, p. 841 ; Bailiff of Bur- 
ford V. Lenthall and others, 2 Atk. 551, and Gracknall v. Jan- 
son (C. A.), 11 Ch. D. 1, 23 ; 27 W. E. 851 ; 40 L. T. 640.) 

But even this involves great additional trouble, and the 
masters generally adopt a rough and ready method of apportion- 
ment. Thus in Knight v. Pursell, 49 L. J. Ch. 120 ; 28 W. R 
90 ; 41 L. T. 581, where the plaintiff applied for an injunction 
in respect of three separate subjects of complaint, and was 
successful as to one, unsuccessful as to the other two, and a 
special order was made, the taxing-master taxed the costs of the 
action as a whole, and then divided them into thirds, allowing 
plaintiff one third, and defendant two-thirds of both plaintiff's 
and defendant's costs. And the Court held that this was all 
that could be expected of him. 

As to dividing the costs of a divisible plea of justification, 
see, under the old practice, Biddulph v. Chaniherlayne, 17 
Q. B. 351 ; Reynolds v. Harris, 3 C. B. N. S. 267 ; 28 L. J. 
C. P. 20. As to costs of immaterial issues, see Goodhurne v. 
Bouwian, 9 Bing. G67. 



Payment into Court. 

It has now been finally decided by the Court of Appeal 
that money may bo paid into Court in any action of 
libel or slander without admitting the plaintiff's cause of 
action, and that any other defence may be pleaded at 
the same time, even a justification. [Ilcmkeslei/ v. Brad- 
shaw (C. A.) 5 Q. B. D. 302 ; 49 L. J. Q. B. 333 ; 28 
W. E. 557 ; 42 L. T. 285.) If the plaintiff accepts the 
sum paid into Court in satisfaction of his claim, he must 
give the defendant a notice in Form l^o. 6, Jud. Act, 
1875, App. B. ; and may then proceed to tax his costs, 
and in case of non-payment within forty-eight hours, 



COSTS OF COUNTERCLAIM. 341 

may sign judgment for his costs. But even in this case 
the plaintiff is subject to the general jurisdiction of the 
Court over all costs ; and may be deprived of his costs, 
if the whole action was useless or malicious. (Broad- 
hurst V. Willey, Weekly Notes, 1876, p. 21.) If the 
plaintiff does not accept the sum paid into Cornet, but 
continues his action for the balance, he may have to pay 
the whole costs of the action, should the jury deem the 
sum paid irusufhcient. [Langridge v. Cmnphell^ 2 Ex. D. 
281; 46 l1 J. Ex. 277; 36 L. T. 64; 25 W. E. 351.) 
But the practice in this respect has lately changed ; and 
the rule now is, that in the absence of special circum- 
stances, the plaintiff shall have his costs of the action 
up to the time when the money was paid into Court, 
and the defendant shall have his costs after that time. 
{BucUon V. Higgs, 4 Ex. D. 174 ; 27 W. E. 803 ; 40 
L. T. 755.) 

Counterclaim. 

It is very seldom that there is a counterclaim in an 
action of libel or slander ; but wherever there is, its 
presence always complicates the question of costs. The 
law on this point can hardly be considered as settled at 
present. But it is clear that the County Courts Act, 
1867, does not apply to actions of libel or slander, nor 
to counterclaims of any kind. [Blake v. Applegard, 3 
Ex. D. 195; 47 L. J. Ex. 407; 26 W. E. 592.) It 
follows therefore, where the original action is either for 
libel or slander and the defendant sets up any counter- 
claim, that if the plaintiff recover any sum at all, even 
a farthing, and the defendant nothing on his counter- 
claim ; then the plaintiff', in the absence of any special 
order to the contrary, is entitled to the whole costs of 
the action, (rotter v. CJiamhers, 4 C. P. D. 457 ; 48 
L. T. C. P. 274 ; 27 W. E. 414.) If both recover some- 



342 COSTS. 

tiling, tlic- plaintiif on his claim and the defendant on 
his countcrelaini, then the one who recovers the larger 
sum is entitled to the general costs of the cause ; the 
other to the costs only of the particular issues which 
have been found in his favour. (Blake v. Appleyard^ 
3 Ex. D. 195; 47 L. J. Ex. 407; 26 W. K. 592; 
HalUncm v. Price, 27 W. E. 490 ; 41 L. T. 627 ; Neale 
and others v. Clark and others, 4 Ex. D. 286 ; 41 L. T. 
438 ; Davidson v. Gray, 5 Ex. D. 189 n.; 40 L. T. 192 ; 
(C. A.) 42 L. T. 834; Cole v. Firth, 4 Ex. D. 301; 40 
L. T. 857 ; Stooke v. Taylor, 5 Q. B. D. 569 ; 49 L. J. 
Q. B. 857 ; 29 W. E. 49 ; 43 L. T. 208.) If neither 
plaintiff nor defendant recover anything, and both claim ; 
and counterclaim be dismissed with costs, the plaintiff i 
pays the general costs of the action, including those 
common to both claim and counterclaim, for he com- 
menced the litigation ; the defendant pays only such \ 
costs as the plaintiff can prove to have been occasioned 
by the counterclaim. [Saner v. Bilton, 11 Ch. D. 416; \ 
48 L. J. Ch. 545 ; 27 W. E. 472 ; 40 L. T. 134, followed I 
in the Court of Appeal in Mason v. Brentini, 15 Ch. D. j 
287; 29 W. E. 126; 42 L. T. 726; 43 L. T. 557.) '] 
If, however, the action be not of libel or slander, 
but be such that it could have been brought in the 
County Court, then the plaintiff cannot recover any 
costs at all from the defendant, unless the damages 
exceed £20, in an action of contract, or £10 in an 
action of tort ; while the defendant is entitled to recover 
on his counterclaim in libel or in slander all the costs of 
his counterclaim, if he recover a farthing only there- 
under. {Stajjles V. Young, 2 Ex. D. 324 ; 25 W. E. 304; 
ChatfieldY. Sedgwick, 4 C. P. D. 459; 27 W. E. 790; 
41 L. T. 438; Rutherford y. WiJkie, 41 L. T. 435.) 

As to when costs will be given on the " higher scale," 



COSTS. 343 



sec Homer v. Oijle)'^ 49 L. J. C. P. 655, and Chapman v. 
Midland Ry. Co., 5 Q. B. D. 167 ; 28 W. E. 413 ; (C. A.) 
5 Q. B. D. 431 ; 49 L. J. Q. B. 449 ; 28 W. E. 592 ; 42 
L. T. 612.) 



"When an action of libel or slander is remitted to the 
Coimty Conrt, under s. 10 of the Coimty Courts Act, 
1867 (30 & 31 Yict. c. 142), the costs will follow the 
event, unless the Judge at the trial make any order to 
the contrary (County Courts Act, 1846, 9 & 10 Vict, 
c. 95, s. 88) ; the costs of the proceedings in the 
Superior Coiu't will be allowed according to the scale in 
use in the Superior Court ; the costs incm-red subsequent 
to the order of reference according to the County Court 
scale. 

Any costs occasioned by undue prolixity in the 
endorsement on the writ (Order II., r. 2), or in the 
pleadings (Order XIX., r. 2), or by delivering interro- 
gatories unnecessarily, vexatiously, or at improper 
length (Order XXXI., r. 2), shall be borne by the party 
in fault. 

As to costs in criminal proceedings, see, as to indict- 
ments, post, p. 590 ; as to criminal informations, post, 
p. 595. 



CHAPTER XII. 

THE LAW OF PERSONS IN BOTH CIVIL AND CRIMINAL 

CASES. 

We have hitherto dealt with the plaintiff and de- 
fendant as individuals, under no disability, who sue and 
are sued singly and in theii' o^tl right. I proj^ose in 
this chapter to examine the rights and liabilities of joint 
plaintiffs and defendants, and also to deal with cases of 
personal disability or disqualification, both in civil and 
criminal cases. 

Formerly the law and practice as to "parties" was of 
the utmost importance, misjoinder of a plaintiff being 
ground of nonsuit, while a non- joinder of a necessary 
plaintiff was the subject of a plea in abatement. But now, 
by Judicature Act, 1875, Order XIX., r. 3, "no plea 
or defence shall be pleaded in abatement," and in Order 
XVI., r. 13, the general princii^le is laid down, that 
" No action shall be defeated by reason of the misjoinder 
of parties, and the Court may in every action deal with 
the matter in controversy, so far as regards the rights 
and interests of the parties actually before it. The 
Court or a Judge may, at any stage of the proceedings, 
either upon or without the application of either party, 
and on such terms as may appear to the Court or a 
Judge to be just, order that the name or names of any 
party or parties, whether as plaintiffs or defendants, who 
ought to have been joined, or whose presence before the 



HUSBAND AND WIFE. 345 

Court may be necessary in order to enable the Court 
effectually and completely to adjudicate upon and settle 
all the questions involved in the action, be added." But 
such order will not as a rule be made where the party 
applying for it is clearly to blame, or where a hardship 
would thus be inflicted on his oj^ponent. And even 
when such an order is made, it will generally be only 
upon payment of all costs thereby occasioned. The im- 
portance of this branch of the law is therefore scarcely 
diminished. 

It will be convenient to divide this chapter into the 
following heads : — 

1. Husband and Wife. 

2. Infants. 

3. Lunatics. 

4. Bankrupts. 

5. Eeceivers. 

6. Executors and Administrators. 

7. Aliens. 

8. Master and Servant ; Principal and Agent. 

9. Partners. 

10. Corporation and Companies. 

11. Other Joint Plaintiffs. 

12. Joint Defendants. 



I . Iliishand and Wife. 

Whenever words actionable per se are spoken of a 
married woman she may sue, but she must join her 
husband's name as co-plaintiff. When the words are 
not actionable per sc, she may sue, provided she can 
show that some special damage has followed from the 
words to her. That special damage has accrued to her 



346 THE LAW OF PERSONS. 

husband, in consequence of such words, will not avail 
her ; for such damage he alone can sue, although it is 
her reputation that has been assailed. 

If the wife has been divorced or judicially separated 
from her husband, or has obtained a protection order 
under the 20 & 21 Vict. c. 85, s. 21, she may sue as a 
feme sole without joining her husband. (Eamsden v. Brear- 
ley, L. E. 10 Q. B. 147 ; 44 L. J. Q. B. 46 ; 23 W. E. 
294 ; 32 L. T. 24.) If, however, she be living separate 
from her husband voluntarily, or under a deed of sepa- 
ration, she must join her husband as a co-plaintiflt, even 
though the special damage alleged be the loss of her own 
personal earnings, which are now by the Married 
"Women's Property Act, 1870 (33 & 34 Yict. c. 93), 
s. 1, her separate estate. Though where the action is 
brought solely "for the protection and security" of 
such separate estate [e. g. an action for a libel upon her 
in the way of her separate trade); there by s. 11 she 
may sue alone. In the Chancery Division the practice 
is for a married woman in all actions relating to her 
separate estate to sue by her next friend, who will be 
personally liable for the costs of the action, and to make 
her husband a defendant. [Roberts v. Evans, 7 Ch. D. 
830 ; 47 L. J. Ch. 469 ; 26 W. E. 280 ; 38 L. T. 99.) 
But in the Common Law Divisions it is still practically 
impossible for a wife to sue her husband. Under special 
circumstances, however, a married woman may by leave 
of a Master at Chambers sue without her husband and 
without her next friend, on giving due secmity for 
costs. (Order XVI., r. 8 ; Mariano v. Mann (C. A.), 
14 Ch. D. 419 ; 49 L. J. Ch. 510 ; 42 L. T. 890.) 

If the words be spoken of the woman before marriage, 
the husband's name must still be joined on the writ ; if 
she marry pending action, the husband should be made 
a party under Order L., r. 2. 



HUSBAND AND WIFE. 347 

If a married Avoman having gciiGral separate estate 
fail in an action of libel, she may bo condemned in costs, 
althongli her husband was joined as a co-plaintiff. 
[Neivton and wife v. Boodle and others^ 4 C. B. 359 ; 18 
L. J. C. P. 73 ; Morris v. Freeman and ivife.^ 3 P. D. 65 ; 
47 L. J. P. D. & A. 79 ; 27 W. E. 62 ; 39 L. T. 125.) 

Whenever the wife is the meritorious cause of action, 
the right survives to her on her husband's death ; the 
widow continues sole plaintiff and the action does not 
abate. If, however, the wife dies before final judg- 
ment, the action must cease ; it cannot be continued by 
her husband either /z^'c mariti, or as her administrator. 

In Scotland a married woman can sue for libel or slander 
without joining her husband, a curator ad litem being ap- 
pointed ; and so she can by special statute in New York and 
Pennsylvania. But even in those States she cannot sue her 
husband foi; slandering her. {Freethy v. Freethy, 42 Barb. 
(N. Y.) 641 ; Tibhs v. Broivn, 2 Grant's Cas. (Penns.) 39). 

If defamatory words be spoken of a married woman 
and damage thereby follow to her husband, the husband 
can sue for the damage that has ensued to himself : and 
this whether the wife has suffered any special damage 
also or not. Formerly he would have been compelled to 
bring a separate action ; by the Common Law Pro- 
cedure Act, 1852, s. 40, the husband was allowed to add 
claims in his own right whenever he was necessarily 
made a co-plaintiff in any action brought for an injury 
done to his wife ; and it was provided that on the death 
of either party the action should not abate so far as the 
causes of action belonging to the survivor were con- 
cerned. And now, by Order XVII. , r. 4, '^ Claims by 
or against husband and wife may be joined with claims 
by or against either of them separately." 



348 THE LAW OF PERSONS. 

This right of the husband to sue for words defamatory of his 
Avife is somewhat anomalous, for liis reputation is in no 
way assailed ; and though he has sustained damage, is it 
not dam7ium sine injuria ? Generally speaking, if words 
defamatory of A., but not actionable in themselves, produce 
damage only to B., neither A. nor B. can sue. But the reputa- 
tion of a husband is so intimately connected with that of his 
wife, that he has always been allowed to sue whenever he has 
received damage, just as though the words had been spoken 
of him. 

And it would seem that this right attaches even where the 
words are not actionable per se ; so that if such words be spoken 
of a married woman and damage ensue to the husband, none to 
her, she cannot sue, but he can. The damage to him is in fact 
the sole cause of action. That this is law, is clearly laid down 
in Siderfin, 346, under the year 1667 : — " Nota, si parols queux 
de eux m ne sont Actionable mes solement in respect del 
collateral daiiis. sont pte. (paries) del feme covert, Le Baron 
sole port L' action, et si le feme soit joyn ove luy le Judgment 
serra pur ceo arrest, coment soit apres verdict." C^her cases of 
that date turn almost entirely on points of pleading (e.g., 
whether the declaration should end " ad damnum ipsius " or 
" ad damnum ipsorum." (Haru'ood et ux. v. Hardwick et ux. 
(1668), 2 Keble, 387; Coleman et ux. v. Harcourt (1664), 
1 Levinz, 140 ; Grove et ux. v. Hart, (1752) B. N. P. 7.) But 
so far as they decide any matter of principle, these cases are 
not inconsistent with the above citation from Siderfin ; neither 
is Russell et ux. v. Come, (1704) 1 Salk. 119; 6 Mod. 127; 2 
Ld. Raym. 1031, which was at that date the leading case on 
the subject of battery of a wife. And this view is certainly 
confirmed by the recent case of Riding v. Smith, 1 Ex. D. 91 ; 
45 L. J. Ex. D. 281 ; 24 W. R. 487 ; 34 L. T. 500 ; where the 
wife's name was struck off the record by the judge at the trial, 
and the husband recovered for tlie damage to his business 
caused by words not actionable per se, spoken of his wife ; 
though there it is true the judges of the Exchequer Division 
base their judgment on the fact that Mrs. Riding helped lier 
husband in the shop, and was therefore his servant or assistant 
as well as his wife. It will clearlj^, therefore, be prudent for 
the pleader to make a separate claim for damages for the hus- 



HUSBAND AND WIFE. 349 

band in all cases of the class of Allsop v. Allsop, 5 H. & N. 
534 ; 29 L. J. Ex. 315. 

Illustrations. 

Where words actionable jjcr S6 were spoken of a married woman, she was 
allowed to recover only 20s. damages ; all the special damage which she 
proved at the trial was held to have accrued to her husband, and not to 
her : he ought therefore to have sued for it in a separate action. He could 
now claim such damage in the statement of claim in his wife's action. 
Dengate and wife v. Gardiner, 4 M. & W. 5 ; 2 Jur. 470. 

Where a married woman lived in service apart from her husband, main- 
taining herself, and was dismissed in consequence of a libellous letter sent 
to her master, it was held that the husband could sue : for his was the 
special damage (before the Married Women's Property Act, 1870). 
Cotoard v. Wellington, 7 C. & P. 531. 

In such a case, had the cause of her dismissal been slanderous words not 
actionable per se, the wife could not (before the Married Women's Property 
Act, 1870, at all events) have joined in the action at all. She would have 
been held to have suffered no damage at all, her personal property belonging 
entirely to her husband. Per Lord Campbell in 

Lynch v. Knight and wife, 9 H. L. C. 589 ; 8 Jur. N. S. 724 ; 
5 L. T. 291. 

The female plaintiff lived separate from her husband and kept a boarding 
house. The defendant spoke words imputing to her insolvency, adultery, 
and prostitution ; some of her boarders left her in consequence, and certain 
tradesmen refused her credit. After verdict for the plaintift", judgment was 
arrested, on the ground that the husband should have sued alone, for the 
words were actionable only by reason of the damage to the business and 
such damage was solely his. 

Saville ct ux. v. Sweemj, 4 B. & Adol. 514 ; 1 N. & M. 254. 

And so in America where a married woman was living apart from her 
husband iinder articles of separation, wherein the husband had covenanted 
that she might use his name in suing for any injury to her person or 
character, and the wife brought an action for slander in the joint names of 
her husband and herself ; the defendant induced the husband to execute a 
deed releasing the cause of action, and pleaded the release in bar of the 
wife's action, and the Court was compelled to h(dd this deed a good answer 
to the action. 

Beach et ux. v. Beach, 2 Hill (N. Y.), 260. 

A married woman trading under her own name according to the custom 
of London, may sue as a trader without joining her husband, for a libel on 
her in the way of her trade. Per Brett, J., L. R. 9 C. P. 583. 

A married woman carrying on a separate trade within the meaning of 
the Married Women's Property Act, 1870, sect. 1, may by sect. 11 sue 
without joining her husband for any tort affecting such separate trade or 
her credit therein. 

Summers v. City Banl; L. R. 9 C. P. 580 ; 43 L. J. C. P. 261. 



350 THE LAW OF PERSONS. 

Where tlie liliel imputed that the plaintiff, a married man, kept a gaming- 
house, and that his wife was a woman of notoriously bad character, and the 
wife fell ill and died in consec[uence, evidence of such damage was excluded 
in an action brought by the surviving husband alone. 

Guy V. Grecjory, 9 C. h P. 584. 

And see Wilson v. Goit, 3 Smith, (17 N. Y. R.) 445, anU, p. 313. 
Words directly defamatory of the wife may also be defamatory of the 
husband, who may therefore sue alone. Thus where defendant said to 
plaintiff's wife : " You are a nuisance to live beside of. You are a bawd ; 
and your house is no better than a bawdj''-house," it was held unnecessary 
to make the wife a party to the action, although the husband proved no 
special damage. For had the charge been true, the plaintiff might have 
been indicted as well as his ^^dfe. 

Hiidde, V. Reynolds, 7 C. B. N. S. 114. 

Coleman et ux. v. Harconrt, (1664) 1 Lev. 140. 

And see Bash v. Somner, 20 Pennsylvania St. R. 159. 
Where the defendant said to the plaintiff, an innkeeper, " Thy house is 
infected with the pox, and thy wife was laid of the pox," it was held that 
the husband could sue ; for even if smallpox only was meant, the words 
were still actionable, " for it is a discredit to the plaintiff, and guests would 
not resort hither." Damages ^50. 

Level's Case, Cro. Eliz. 289. 
" If an innkeeper's wife be called ' a cheat,' and the house lose the trade, 
the husband has an injury by the words spoken of his wife." Per Wythens, 
J., in 

Baldwin v. Flower, (1688) 3 ]\Iod. 120. 

Grove et ux. v. Hart, (1752) B. N. P. 7. 



For all libels published, or slanders uttered, by the 
wife during coverture, her husband is liable, and must 
alwaj^s be joined with her as a defendant. This is so, 
even where the plaintiff wishes to charge the wages and 
earnings of the wife, which are now her separate pro- 
perty; for the Married "Women's Property Act, 1870, 
makes no alteration in the position of a married woman 
as defendant. (Hancocks cV Co. v. 3fadame Demeric- 
Lahlache; 3 C. P. D. 197; 47 L. J. C. P. 514; 26 W. 
E. 402; 38 L. T. 753.) 

For all libels published, or slanders uttered by the wife 
before coverture, her husband was at common law liable 
to the full extent. But on this point the law has 
recently been altered by the Married Women's Property 



HUSBAND AND WIFE. 351 

Act Amendment Act, 1874 (37 & 38 Vict. c. 50), ss. 
2, 5, which limit the liability of the husband for torts 
committed by his wife dum sola to the extent merely of 
the property which has vested in him by reason of the 
marriage. Still the husband must be made a joint de- 
fendant in every case, and must plead specially that no 
property came to him with his wife, if such be the fact. 

If the husband dies, the action continues against the 
widow ; if however the wife dies in the lifetime of her 
husband, the action immediately abates. If they be 
divorced, the wife must be sued alone, even though the 
words complained of were published before the divorce. 
{Ciqjel V. Poiuell and another^ 17 C. B. N. S. 743; 34 
L. J. C. P. 168 ; 10 Jur. K S. 1255 ; 13 W. E. 159 ; 
11 L. T. 421.) So in the case of a judicial separation 
(20 & 21 Vict. c. 85, ss. 25, 26.) But if the husband 
and wife voluntarily live apart under a separation deed, 
the common law rule prevails, and the husband must be 
joined as a defendant. [Head v. Briscoe et ux. 5 C. & 
P. 485; 2L. J. C. P. 101.) 

A married woman Avill be held criminally liable for a 
libel she has published. {R. v. Marfj Carlile, 3 B. & 
Aid. 167.) Her coverture will, it seems, be no defence 
to an indictment for a misdemeanour. [R. v. Ingram, 
1 Salk. 384 ; R. v. Cruse and Mary his tuife, 2 Moo. C. C. 
53; 8 C. &P. 541.) 

Illustvations. 

j Plaintiff sued Orchard and his wife for «hauderous words, the jury found 

1 that Orchard had spoken the words, but not Mrs. Orchard. Judgment 

I against the husband. It was moved in arrest of judgment that tlie speaking 

of the words could not be a johit act, and that if the husband alone uttered 

them, the wife ought never to have been made a party to the action. But 

! it was held that this defect was cured by the verdict, and that the plaintiff 

was entitled to retain his judgment. 

Burcher v. Orchard et ux.Xl652) Style, 349. 
But see StvitJdn et ux. v. Vincent et ux. (17G4) 2 Wils. 227. 
Mrs. Ilarwood slandered Mrs. ^Vhite ; wherefore White and wife sued 



352 THE LAW OF PERSOAS. 

Harwood and wife. Pending action, Harwood died, and liis widow re- 
married. The Court was very much puzzled, and gave no judgraent, appa- 
rently, though inclining to think that the writ abated. I think it would 
now depend on whether the widow had any property at the date of her 
second marriage ; if so, the second husband could be added under Order L. 
r. 2 ; if not, the action would probably 1)6 held to abate : but it would 
certainly be but little use continuing it. See the Married Women's 
Property Act Amendment Act, 1874 (37 & 38 Vict. c. 50) s. 2. 

JVliite et ux. V. Harwood et tix. (1648) Style, 138 ; Vin. Abr. 
" Baron and Feme," A. a. 



2. Infants. 

An infant may sue by his next friend, as before the 
Judicature Act. The next friend of an infant is per- 
sonally liable for the costs of the suit [Calejj \. Calej/, 25 
W. E. 528); but security for costs will not as a rule be 
required from him, lest the infant should lose Lis rights 
altogether. That an infant has been defamed gives his 
parents no right of action, unless in some very excep- 
tional case it deprives the parent of services which the 
infant formerly rendered, in which case an action on the 
case may lie for the special damage thus wrongfully 
inflicted, provided it be the natural and probable conse- 
quence of the defendant's words. (See post, Master and 
Servant, p. 358.) A child will be held to be the servant 
of its parents, provided it is old enough to be capable of 
rendering them any act of service. (Dixon v. Bell, 5 
Maule & S. 198 ; Il(dl v. Hollander, 4 B. & C. 6G0 ; 7 
D. & R. 133 ; Evans v. Walton, L. R. 2 C. P. 615 ; 15 ;'| 
W. R. 1062.) An infant defends by a guardian ad litem 
apj^ointed ex parte by the Master or District Registrar 
upon the infant's petition, supported by affidavit. Any^ 
fit and proper person std jiiris im(i^Y\i\ml the jimsdic- 
tion may be appointed, if he has no adverse interest. A 
co-defendant in the same interest may be appointed. If 
an infant defendant do not appear to a writ duly served, d 



INF A NTS. L UNA TICS. 3 5 3 

the plaintiff may by virtue of Order XIII., r. 1, apply 
ex parte to a Master or District Eegistrar, on an affidavit 
of due service both of the writ and of notice of this 
application, for an order appointing some proper person 
guardian ad litem. A guardian ad litem is not liable for 
costs, unless he has been guilty of gross misconduct. 

The infancy of the defendant is of course no defence 
to any action of tort not founded on contract. In 
Defries v. Davies, 7 C. & P. 112 ; 3 Dowl. 629, the 
defendant, a lad of fifteen, was imprisoned for default in 
payment of damages and costs for a slander. 

An infant ^vill also be criminally liable for any libel, 
if he be above the age of fourteen. If he be under 
fourteen but above seven, he might possibly be found 
guilty of a libel, if evidence were given of a disposition 
prematurely wicked. Malitia supplet aetatem. But 
much more than the j)roof of express malice ordinarily 
given in cases of privilege would probably be required. 
A child under seven cannot possibly commit any crime. 



3. Lunatics. 

It is almost inconceivable that an admitted lunatic 
should bring an action of libel or slander. But, should 
such an event hapj^en, he ought to sue by his next 
friend, if he has not yet been found of unsound mind by 
inquisition ; if he has been, then by his committee, who 
before commencing the action must obtain the sanction 
of the Lords Justices and of the Master in Lunacy in 
the proper way. 

Lunatics defend an action by their committee, if one 
be appointed, and if he has no adverse interest ; in other 
cases by a guardian ad litem appointed in the same way 
as in the case of an infant. (See ante^ p. 352, and Order 



354 THE LAW OF PERSONS. 

XIII., r. 1.) Lunacy is in England no defence to an 
action for slander or libel. i^Per KeUy, C. B., in 
Mordaunt y. 3Iordaunt, 39 L. J. Prob. & Matr. 59.) 
In America, however, insanity at the time of speaking 
the words is considered a defence, " where the derange- 
ment is great and notorious, so that the speaking the 
words could produce no effect on the hearers," because 
then "it is manifest no damage would be incurred." 
But where the degree of insanity is slight, or not uni- 
form, there evidence of it is only admissible in mitiga- 
tion of damages. [DicJcinson v. Barher^ 9 Tyng (Mass.), 
218 ; Yeates et ux. v. Reed et ux., 4 Blackford (Indiana), 
463 ; Horner v. 3farsJialVs Administratrix, 5 Munford 
(Vii'ginia), 466.) 

A lunatic cannot be held criminally liable for a libel, 
published under the influence of mental derangement ; 
but the onus of proving this defence lies on the 
accused. 



4. Bankrupts. 

An undischarged bankrupt may sue for and recover 
damages for a personal wrong such as libel or slander, 
nor will such damages j)ass to his trustee under s. 15 
of the Bankruj^tcy Act, 1869. [Dotvling v. Browne, 
(1854) 4 Ir. C. L. E. 265 ; Ex parte Vine, In re Wilson, 
8 Ch. D. 364; 26 W. E. 582; 38 L. T. 730.) The 
right of action is not assignable. (Benson v. Flower, Sir 
Wm. Jones, 215.) A defendant if sued by a bankrupt 
or one whose affairs are actually in liquidation is entitled 
to have securitj^ given for the costs of the action. (Com 
mon Law Procedure Act, 1852, s. 142. BrockJehank 
^' Co. V. King's Lynn Steamship Co., 3 C. P. D. 365; 
47 L. J. C. P. 321 ; 38 L. T. 489.) 



EXECUTORS, ETC. 355 



5. Receivers. 

If receivers appointed by the Court of Chancery in an 
administration suit to carry on a gazette, publish a libel 
therein, they are of course personally liable to the 
defendant for damages and costs. The damages, it 
would seem, may be paid out of the estate, but not the 
costs ; those the receivers must pay out of their own 
pocket. [Stuhhs V. 3farsh, 15 L. T. 312.) So in 
America. {3farfcn v. Van Sc/iaic/c, 4 Paige, 479.) 



6. Executors and Adtmnisfrators. 

The maxim actio personalis cum persona moritur applies 
to all actions of libel and slander. If, however, a verdict 
be obtained, and then plaintiff die, his executor may 
enter up judgment : (17 Car. II. c. 8 ; Palmer v. Cohen^ 
2 B. & Adol. 966; cf. Krcmer v. Waymark, L. E. 1 Ex. 
241 ; 35 L. J. Ex. 148 ; 12 Jur. N. S. 395 ; 14 W. E. 
659 ; 14 L. T. 368.) Eut if interlocutory judgment be 
signed and a writ of inquiry issue, and then plaintiif 
die, final judgment cannot be entered (8 & 9 Will. III. 
c. 11, s. 6; Ireland Y. Champneys, 4 Taunt. 884). And 
the law on this point is in no way altered by Order L., 
r. 1. But if final judgment has once been entered in 
the plaintiff's favour, and then defendant appeals, the 
action will not abate ; but the executors or administra- 
tors of the late plaintiff may appear as respondents to 
the appeal. {T'wijcross v. Grant and others (C. A.), 4 
C. P. D. 40 ; 47 L. J. Q. B. 676 ; 27 W. E. 87 ; 39 
L. T. 618.) So in America [Sandford v. Bennett^ 24 
N. Y. 20). 

A A 2 



356 THE LAW OF PERSONS. 



7. Aliens. 

An alien friend residing abroad may sne in England 
for a libel or slander published of him in England. 
(Pisani v. Lmvson, 6 Bing. X. C. 90 ; 5 Scott, 418.) 
The place where the words were spoken or published is 
the test of jurisdiction ; not the domicile of the plaintiff 
or the defendant. (Order XL, r. 2.) But a foreign 
plaintiff, if domiciled abroad, will be ordered to give 
security for costs, unless he either has real property 
Avithin jurisdiction available in execution, or is co- 
plaintiff Avith others resident in England. Plaintiffs 
resident in Scotland and Ireland are not, hoAvever, con- 
sidered foreigners for this purpose (31 & 32 Vict. c. 54, 
s. 5). 

If, hoAvever, an English plaintiff goes to reside out 
of jurisdiction during the action, he may be ordered to 
give security for costs, and that for costs ah-eady in- 
curred as well as past costs. [Masses/ v. Allen, 12 Ch. 
D. 807 ; 48 L. J. Ch. 692 ; 28 W. E. 243.) On the 
other hand, if an alien plaintiff happen to be within 
jurisdiction at the date of the apj^lication, no order for 
security for costs can be made against him, even though 
it is admitted that he intends to return to the continent 
as soon as the case is at an end. (Eedondo y. Cha//lor, 
(C. A.) 4 Q. B. D. 453 ; 48 L. J. Q. B. 697 ; 27 W. E. 
701; 40 L. T. 797.) 

That the plaintiff is an outlaw is ground for staying 
proceedings. (7v. v. Lowe and Clements, 8 Ex. 697 ; 22 
L. J. Ex. 262.) But such stay Avill be remoA^ed on the 
rcA'^ersal of the outlaAvry. [Somers y. Holt, 3 DoavI. 
506.) But noAA' no person can be outlawed in any civil 
proceeding. (42 & 43 Yict. c. 59, s. 3.) 

Every foreigner within jurisdiction for however short 



ALIENS. 357 

a time owes the Queen allegiance during his stay, and is 
subject to our laws. He will be liable therefore, both 
civilly and criminally, for every libel published within 
the jurisdiction of the English courts ; he will also be 
civilly liable for every slander uttered within jurisdic- 
tion. If he has left England before the writ is issued, 
plaintiff must apply, under Order XL, for leave to issue 
a writ and give the defendant notice thereof in lieu of 
service out of the jurisdiction. (Westmanx. AJctieholaget 
cV'c, 1 Ex. D. 237 ; 45 L. J. Ex. 327 ; 24 W. E. 405 ; 
Beddington v. Beddiiigton, 1 P. D. 426 ; 45 L. J. P. D. 
44 ; 24 W. E. 348 ; 34 L. T. 366 ; Bustros v. Bustros, 
49 L. J". Ch. 396 ; 28 W. E. 595.) (For the form of 
such notice see Judicature Act, 1875, Appendix A., 
form No. 3.) 

But if the words be spoken out of jurisdiction, the fact 
that they incidentally affect property within jurisdiction 
is not sufficient to bring the case within Order XI. 

Illustrations. 

The defendant out of jurisdiction made a statement in the nature of 
slander of title to the plaintiff's ship. The Court refused to allow the writ 
to be served, although the ship was at the time within jurisdiction. 

Casey v. Arnott, 2 C. P. D. 24 ; 46 L. J. C. P. 3 ; 25 W. R. 46 ; 
35 L. T. 424. 
A French refugee in England wrote a stilted poem about the apotheosis 
of Napoleon Buonaparte, then first consul of the French Republic, suggesting 
that it Would be an heroic deed to assassinate him. He was held amenable 
to the English criminal law, although the libel was purely political, affected 
no one in the British Isles, and attacked the man who was England's greatest 
enemy at the time. The jury found him guilty ; but war broke out again 
between England and France soon afterwards, and no sentence was ever 
passed. 

E. V. Jean Peltier, 28 Howell's St. Tr. 617. 



353 THE LAW OF PERSONS. 



8. Master and Servant — Princijud and Agent. 

If a servant or apprentice be libelled or slandered lie 
can of course sue in his own rio'ht. In some cases his 
master also can sue in an action on the case, if the 
words have directly caused him pecuniary loss ; e. g. if 
the servant has been arrested, and the master deprived 
of his services in consequence of the defendant's words ; 
or if in any other way the natiu'al consequence of the 
words spoken has been to injure the master in the way 
of his trade. And this aj^pears to be the law whether 
the words be actionable 2^<^>' se or not. 



Illustixitions. 

If defendant tlireateu plaiutilf's -worlcmen, so that the}' dare not go on 
with their work, and the plaintiff in consequence loses the profit he would 
have made on the sale of liis goods, an action lies. 

Garret v. Taylor, (1621) Cro. Jac. 567 ; 1 Roll. Abr. 108. 
Bimngliead Spinniiuj Co. v. Riley, L. E. 6 Eq. 551 ; 37 L. J. Ch. 
889 ; 16 W. R. 1138 ; 19 L. T. 64. 
" Supi^using the statement made not to be slander, but something else 
calculated to injure the shopkeeper in the way of his trade, as for instance 
a statement that one of his shojamen was suffering from an infectious disease, 
such as scarlet-fever, this would operate to prevent people coming to the 
shop ; and whether it be slander or some other statement Avhicli has the 
effect I have mentioned, an action can, in my opinion, be maintained on 
the ground that it is a statement made to the public which would have the 
effect of preventing their resorting to the shop and buying goods of the 
OAvner." Per Kelly, C.B., in 

Fading v. Smith, 1 Ex. D. 94. 
Mrs. Riding assisted her husband in bis shop ; words not actionable per se 
were spoken of her which by natural consequence injured the trade of the 
shop. Mrs. Riding sued the speaker, joining her husband for conformity. 
At the trial it became clear that the only special damage was to the husband. 
Thei'eupon the plaintiff's counsel applied to have the wife's name struck off 
the record. The learned judge made the requii'ed amendment, and the 
action then became an action by a master for injury to his business caused 
by slander of his assistant in that business. Held, that the action lay. 

Eidinfiv. Smith, 1 Ex. D. 91 ; 45 L. J. Ex. 281 ; 24 W. R. 487; 
34 L. T. 500. 



MASTER AND SERVANT. 359 

If any agent or servant be in any way concerned in 
writing, printing, publishing, or selling a libel, he will 
be both civilly and criminally liable. If a clerk or 
servant copy a libel, and deliver the copy he has made 
to a third jDerson, he will be liable as a publisher. That 
his master or emj)loyer ordered him to do so, will be no 
defence. (Fer Wood, B., in Maloneij v. Bartley, 3 
Camp. 210.) " For the warrant of no man, not even of 
the king himself, can excuse the doing of an illegal act ; 
for although the commanders are trespassers, so are also 
the persons who did the fact." [Per cur. in Sands, qui 
tarn, Sfc, V. Child and others, (1693) 3 Lev. 352.) The 
agent or servant cannot recover any contribution from 
his employer [Merry iveather v. Nixan, 2 Sm. Lg. Cases 
(8th Edn.) 546; 8 T. E. 186); and any promise to 
indemnify him against the consequences of the publica- 
tion, or against the costs of an action brought for the 
libel, will be void. [Shackell v. Rosier, 2 Bing. IN". C. 
634; 3Sc. 59.) 

But it will be a defence if the agent or servant can 
satisfy the jury that he never read the paper he de- 
livered and was wholly ignorant that it was a libel ; e.g. 
where a postman or messenger carries a sealed letter of 
the contents of which he is not conscious. 

So, too, a servant or agent will be liable for any 
slander uttered on his master's behalf and by his master's 
orders : but here he cannot set up as a defence that he 
did not know his master's orders were illegal ; for he 
must be conscious of what he himself is saying. 

Illustrations. 

A compositor will be criuiiiially liable for settiug up the type of a libel ; 
so will the man whose business it is merely to clap down the press. 
R. V. Knell (1728), 1 Barnard. 305. 
E. V. CUrh, 1 Barnard. 304. 
A porter who, in the course of business, delivers parcels containinp; 



% 



36o THE LAW OF PERSONS. 

libellous handbills, is not liable in an action for libel, if shown to be 
ignorant of the contents of the parcel ; for he is bvit doing his duty in the 
ordinary way. 

Bay V. Brum, 2 M. & Rob. 54. 

A master or principal will be liable to an action, if 
false defamatory words be spoken or pnblished by bis 
servant or agent with his authority and consent. The 
mere fact that the actual publisher was the servant or 
agent of the defendant is not alone sufficient ; for 
authority to commit an unlawful act will not in general 
be presumed. It must be further proved that the 
servant or agent in speaking or publishing the defama- 
tory words was acting in accordance with the express or 
implied instructions of the defendant : the wrongful act 
then becomes the master's by construction, being the 
servant's in fact. 

Where the instructions are exj)ress, there can be no difl&calt3\ 
But the inclination of our Courts has of late years been not 
to press the doctrine of implied authority so far as was done in 
older cases. However, it is clear law that the proprietor of a 
newspajoer is both civilly and criminally responsible for what- 
ever appeal's in its columns, although the publication may have 
been made without his knowledge, and in his absence. For he 
must be taken to have ordered his servants to print and sell 
whatever manuscript the editor might send them for that 
purpose. The proprietor trusts to the discretion of the editor 
to exclude all that is libellous ; if tlie editor fails in this duty, 
still the paper will be printed and published by the proprietor's 
servants, by virtue of his general orders. So if a master-printer 
has contracted to print a monthly magazine, he will be liable 
for any libel that may appear in any number printed at his 
office. So every bookseller must be taken to have told his 
shopmen to sell whatever books or pamphlets are in his shop 
for sale ; if any one contain libellous matter, the bookseller is 
(prima facie at all events) liable for its publication by his 
servant by reason of such general instructions. But where a 
master's orders are such that they can be obeyed without any 



AUTHORITY OF SERVANT. 361 

illegality, lie is not liable because his servant chooses to carry 
them out illegally and tortiously, even although the servant 
honestly believes that he is best serving his master's interests 
by thus executing his business. 

But although the master has not authorised the act of 
the servant, still if it was clone for his benefit and on his 
behalf, he may subsequently ratify it. Oninis ratihibitio 
priori mandato aequiparatur . But " in order that there 
may be a valid ratification, there must be both a know- 
ledge of the fact to be ratified, and an intention to ratify 
it." [Per Keating, J., in Edwards v. London 6f N. W. 
Ejj. Co., L. E. 5 C. P. 449.) The master must do some- 
thing more than merely stand by, and let the servant 
act. Non-intervention is not ratification. [Moon v. 
Tozvers., 8 C. B. IS". S. 611 ; Weston v. Beeman and 
another, 27 L. J. Ex. 57.) 

IllustTations. 

At a meeting of a board of guardians, at which reporters were present, 
the chairman made a statement reflecting on the plaintiff, and added " I am 
glad gentlemen of the press are in the room, and I hope they will take 
notice of it : publicity should be given to the matter." A report accordingly 
appeared in two local papers. Held, by the majority of the Exchequer 
Chamber (three judges against two) that there was some evidence to go to 
the jury that the defendant had expressly authorised the publication of the 
alleged libel in the newspapers. 

ParAe.5 v. Prescott d; another, L. K. 4 Ex. 169 ; 38 L. J. Ex. 105 ; 

17 W. R. 773 ; 20 L. T. 537. 
See also B. v. Cooper, 8 Q. B. 533 ; 15 L. J. Q. B. 206. 
Tarpley v. Blabey, 2 Bing. N. C. 437 ; 2 Scott, 642 ; 1 Hodges, 
414. 
The defendant's daughter, a minor, was autiiorised to make out his bills 
and write his general business letters : she chose to insert libellous matter 
in one letter. Tlie lather was held not lialile for the wrongful act of his 
daughter, in the absence of any direct instructions. 

Hardiwj v. Greening, 8 Taunt. 42 ; 1 Moore, 477 ; 1 Holt N. P. 

531. 
See Moon v. Toioers, 8 C. B. N. S. 611. 
The defendant Moyes regularly printed Fraser's Magazine; but had nothing 
to do with preparing the illustrations. One number contained a libellous 



362 THE LAW OF PERSONS. 

lithogra])lnc print. The defendant, the printer, was held liable for this print, 
though he had never seen it ; because it was referred to in a part of the 
accompanying letterpress, \^'hich had been printed by his servants. A 
rule on this jioint was refused. The editor was of course liable also. 

Watts V. ¥ni&cr & Moyes, 7 C. & P. 369 ; 7 A. & E. 223 ; 1 Jur. 
671 ; 1 M. & Rob. 449 ; 2 N. & P. 157 ; W. W. & D. 451. 
The proprietor of a newsj^aper will be held liable for an accidental slip 
made by his printer's man Li setting up the type. 

ShqjJteard v. Whitaker, L. R. 10 C. P. 502 ; 32 L. T. 402. 
And for a libellous advertisement inserted by the editor without his 
knowledge. 

Harrison v. Pcarce, 1 F. & F. 567 ; 32 L. T. (Old S.) 298. 
The proprietor of a newspaj^er in America on going away for a holiday 
expressly instructed his acting editor to publish nothing exceptionable, 
personal or abusive, and warned him especially to scan very particularly 
any article brought in by B., who was known to be a "smart" writer. The 
editor [permitted an article of B.'s to appear which contained Libellous 
matter. The proprietor was held liable though the publication was made 
in his absence and without his knowledge. 

Dunn V. Hall, 1 Carter, (Indiana) 345 ; 1 Smith, 288. 

HuffY. Bennett, 4 Sand. (New York) 120. 

Curtis V. Musseij, 6 Gray, (Mass.) 261. 

Andres v. TVells, 7 Johns. (New York) 260. 



A master or principal is criminally liable for any libel 
publislied by his servant or agent with, his authority or 
consent. At common law he is even criminally liable 
for snch libel, although he had no knowledge of what his 
servant -s^-as doing, if his servant was acting in pursu- 
ance of general orders. Thus, whenever an employer is 
civilly liable for a libel published by his servants, he is, 
apart from Lord Camj^bell's Act, criminallj^ liable also. 
Indeed, in ParJccs v. Prescott and another, (Exch. Ch.) 
L. E. 4 Ex. 169 ; 38 L. J. Ex. 105 ; 17 W. E. 773 ; 20 
L. T. 537, Byles, J., asserts that the criminal liability of 
the master may be more extensive than his civil lia- 
bility : — " There is a great distinction between the 
authority which will make a man liable criminally and 
the authority which will make him liable civilly. A 
principal is not civilly liable for the acts of his agent, 
unless the agent's authority be by the agent duly pui'sued; 



PUBLICAriON BY SERVANT. 363 

but the principal may be criminally liable though the 
agent have deviated very widely from his authority." 
And the learned Judge, wliile approving of R. v. Cooj^er^ 
8 Q. B. 533 ; 15 L. J. Q. B. 206, as a decision in criminal 
law, refused to follow it as any authority in a civil case. 
But this view was not adopted by the rest of the Court. 
The criminal liability of a master or principal for a 
libel published by his servant or agent without his 
knowledge or consent is now defined by s. 7 of Lord 
Campbeirs Act (6 & 7 Yict. c. 96), by which it is 
enacted '' that whensoever, upon the trial of any indict- 
ment or information for the publication of a libel, under 
the plea of * Not Guilty,' evidence shall have been given 
which shall establish a presumptive case of publication 
against the defendant by the act of any other person by 
his authority, it shall be competent to such defendant to 
prove that such publication was made without his autho- 
rity, consent, or knowledge, and that the said publication 
did not arise from want of due care or caution on his 
23art." This enactment applies only to criminal cases, 
and it may be questioned vrhether it altered or only 
declared, the existing criminal law. (See B. v. Almouj 
5 Burr. 2686.) The only reported case on this section is 
II. V. HolhrooJc and others, 3 Q. B. D. 60 ; 47 L. J. Q. 
B. 35; 26 W. E. 144; 37 L. T. 530 ; 13 Cox, C. C. 
650; 4 Q. B. D. 42; 48 L. J. Q. B. 113; 27 W. E. 
313 ; 39 L. T. 536 ; 14 Cox, C. C. 185. 

IlliLstvations. 

The clefendcant kept a pamphlet-giliop : slie was sick and upstairs in bed : 
a liljel was brought into the shop without her knowledge, and subsequently 
soM by her servant on her account. She was held criminally liable for the 
.1' I of her servant, on the ground that "the law presumes that the master 
is acquainted with what his servant does in the course of his business," 
R. V. Dodd, 2 Sess. Cas. 33. 
Nutt's Case, Yitz-' 47 : Barnard. K. B. 306. 



1^ 



364 THE LAW OF PERSONS. 

But I doubt if later judges would have been quite so strict : the sickness 
upstairs would surely have been held an excuse, even before the 6 & 7 Vict, 
c. 96, s. 7, became law. See 

i?. V. Almon, 5 Burr. 2686. 
A libel was published in a London newspaper, T/ic Morning Journal. At 
the time of publication, Mr. Gutch, one of the proprietors, was away ill in 
Worcestershire, in no way interfering with the conduct of the paper, which 
was managed entirely by Alexander. Lord Tenterden directed the jury to find 
Gutch guilty, on the ground that it was on his capital that the paper was 
carried on, that he derived profit from its sale, and he had selected the 
editor who had actuallj- inserted the libel. Lord Tenterden the next day 
admitted (j^. 438) that some possible case might occur in which the pro- 
prietor of a newspajjer might be held not criminally answerable for a libel 
Avhieh had appeared in it. Gutch was con-\dcted, but subsequently dis- 
charged on his own recognizances. 

R. V. Gutch, Fisher <£• Alexander, Moo. & Mai. 433. 

R. Y. Walter, 3 Esp. 21. 

And see Attorney-General v. Sicldon, 1 Cr. & J. 220. 
The defendants were the proprietors of the Portsmouth Times and Naval 
Gazette ; each of them managed a diflerent department of the newspaper, 
but the duty of editing what was called the literary department was left 
by them entirely to an editor Avhoni they had appointed, named Green. 
The libel in question was inserted in the paj^er by Green without the 
express authority, consent, or knowledge of the defendants. At the trial 
of a criminal information the judge directed a verdict of guilty against the 
defendants. Held, by Cockburn, C.J., and Lush, J., that there must be a 
new trial, for upon the true construction of 6 & 7 Vict. c. 96, s. 7, the libel 
was published without the defendants' authority, consent, or knowledge, 
and it was a question for the jury whether the publication arose from any 
want of due care and caution on their part. By Mellor, J., dissenting, that 
the defendants, having for their own benefit employed an editor to manage 
a particular department of the newsjiaper, and given him full discretion as 
to the articles to be inserted in it, must be taken to have consented to the 
publication of the libel by him : that 6 & 7 Vict. c. 96, s. 7, had no applica- 
tion to the facts proved, and that the case was properly withdrawn from 
the jurv. 

R. V. Holhrooh cD others, 3 Q. B. D. 60 ; 47 L. J. Q. B. 35 ; 26 
W. E. 144 ; 37 L. T. 530 ; 13 Cox, C. C. 650. 
On the new trial Green was called as a witness, and stated that he had 
general autliority to conduct the paper, that the defendants left it entirely 
to his discretion to insert what he pleased, and that he had allowed the 
letter complained of to appear in the j^aper without the knowledge or 
exjiress authority of the defendants, one of whom was absent from Ports- 
mouth at the time. The jury found all the defendants guilty. On a 
motion for a new trial on the ground that the verdict was against evidence, 
and of misdirection, Held (by Cockburn, C.J., and Lush, J., Mellor, J., still 
dissenting), that the general authority given to the editor was not fcr > 
evidence that the defendants had authorised or consented to the pubUcatici: 



SPECIAL DAMAGE. 313 

to disregard abusive insulting remarks concerning him, and his physical 
strength and ability to bear them. Words which would make hardly an 
impression on most persons, and would be thought by them, and should be 
by all, undeserving of notice, might be exceedingly painful to some, occa- 
sioning sickness and an interruption of al)ility to attend to their ordinary 
avocations." 

Terivilliger v. TFands, 3 Smith (17 N. Y. R.) 54, over-ruling 

Bradt v. Toivsky, 13 Wend. 253, and Fnller v. Fenner, 16 

Barb. 333. 

So, too, a husband cannot maintain an action for the loss of his wife's 

services caused by illness or mental depression resulting from defamatory 

words not actionable i^er se being spoken of her by the defendant. For the 

wife, if sole, could have maintained no action. " The facility with Avhicli 

a right to damages could be established by pretended illness where none 

exists, constitutes a serious olgection to such an action as this." Per 

Denio, J., in 

Wilson V. Goit, 3 Smith (17 N. Y. R.) 445. 



Special damage must always be explicitly claimed on 
the pleadings and _strictly proved at the trial. And 
wher e the words aTejiotj iction able_j;gr 5r, the plaintifi 
will be confined to the special dama p^e laid; he must 
either pr ove that, or be nonsu ited ; he cannot fall back 
on general damages, as he can w her^the words are ac- 
tionable per se. For there are no general damages to fall 
back on ; ex hjpotliesi the words are such as the law will 
not presume injurious. And so, too, where the special 
damage is proved, the jury should strictl}" find a verdict 
for the amount of such special damage merely, for the 
sum that the plaintiff has proved he has lost and no 
more. The jury ought not to compensate the plaintiff 
foi^'pain, mental anxiety, or a general loss of reputation, 
but should confine their assessment to the , actual pe- 
cuniary loss that has hccni alleged and proved. [Dixon 
X^nith, 5H. & N. 450; 29 L. J. Ex. 125.) Tins 
rule, however, is fi-equently neglected in practice ; and , 
as soon as any special damage is proved, the words are ,* 
treated as though they were actionable ^^6'r se. 

To allege generally that in consequence of the de- 



314 DAMAGES. 

fendant's words the plaintiff has lost a large sum of 
money, or tliat his practice or business has declined, is 
not a sufficiently precise allegation of spec ial da mage. 
The names of tlio persons who have ceased to employ the 
plaintiff, or who would have commenced to deal with 
him, had not the defendant dissuaded them, must be set 
out in the statement of claim, or in the particulars ; and 
they must themselves be called as witnesses at the trial 
to state their reason for not dealing with the plaintiff. 
Else it will not be clear that their witholding their 
custom was in consequence of defendant's words ; it 
might well be due to some other cause. {Fer Lord 
Kenyon, C-. J., in Ashley v. Harrison, 1 Esp. 48 ; Peake, 
256 ; 2^e^' I^est, C. J., in TWc v. Parsons, 2 C. & P. 201.) 
' Loss of custom or diminution of j)rofits, when not speci- 
(^ fically alleged, and the customers' names assigned, is 
) general, not special, damage, and can only therefore be 
) proved where the words are actionable per se. [Harrison 
V. Pearce, 1 F. & P. 567 ; 32 L. T. (Old S.) 298.) ^If 
the plaintiff cannot give the names of those who have 
ceased to deal with him, or cannot prove that their so 
ceasing is due to the defendant's words, he must be non- 
suited ; although there has in fact been a falling off in 
his business. 



? 



The loss to the plaintiff must be directly connected with the 
defendant's utterance of the words. If others repeat his words, 
with or without additions of their own, the defendant is not 
liable for the consequences of what they say. And it is only by 
such repetitions that a general loss of business can be brought 
about. It is true that many traders, such as innkeepers, 
tobacconists, and others, seldom know the names of their 
customers, who are often chance passers-by. It might therefore 
be urged that such traders should never be required to state 
the names of particular customers, whether the words be 
actionable per se or not. This is the law in Victoria apparently ; 
see Brady v. Youlden, post, p. 317. And in Riding v. Smith, 



LOSS OF CUSTOM. 315 

1 Ex. D. 91 ; 45 L. J. Ex. 281 ; 24 W. R. 487 ; 34 L. T. 500, 
Kelly, C.B., after stating with great clearness that "the words 
would not be actionable as slander without proof of special 
damage, which must be established not merely by general 
evidence that the business has fallen off, but by showing that 
particular persons have ceased to deal with the plaintiff," — 
yet held that such evidence was properly received in the case 
before him, which he deemed an a ction on the ca se, and not an 
action of defamation. It is clear, therefore, that the late Lord 
Chief Baron did not moan to lay down any general rule, and 
that Riding v. S mith is not to be regarde d as an authority 
in actions of defamation, but merely as an exceptional case 
depending upon its own peculiar facts. In a very similar case, 
Kent V. Stone, Bristol Summer Assizes, 1880, Lord Coleridge, 
0. J., refused t£ follow Riding y._Sriiit h on this p oint ; as being 
contrary to all previous decisions. In Clarke v. Morgan, 38 
L. T. 354, Grove, J., points out the_anomaly which would follow 
if the rule in Riding v. Smith were universally carried out. 
The defendant has sjDoken to A. words which are not actionable 
2)erse; i.e., Avords of such a character that the law will not 
presume that they can injure the plaintiff. A. I'epeats them to 
B., B. to C, C. to D., and so on, till at last the plaintiff's 
business declines. If B., C, and D. were called, they would 
state that they never heard a word from the defendant on the 
matter ; and then it is clear law that the jury could only award 
the plaintitf damages for the loss of A.'s custom, A. being the 
one man to Avhom defendant spoke. {Dixon v. Smith, 5 H. & 
N. 450 ; 29 L. J. Ex. 125 ; Bateman and Wife v. Lyall and 
Wife, 7 C. B. N. S. G38 ; Hirst v. Goodivin, 3 F. & F. 257.) 
And yet, by merely keeping them out of the box, the plaintiff 
would (if Riding v. Smith be adopted as a general authority 
in cases of slander) illegally recover damages for the loss of the 
custom of B., C, D., E., and F. Lindley , J., in the same case 
(38 L. T. 355) expresses his opinion that the decisions in Ward 
V. Weeks and Parkins v. Scott have in no way been overruled 
by Riding v. Smith and Evans v. Harries. As a rule, words 
which cause loss of custom to a trader are spoken of him in the 
way of liis trade, and are therefore actionable ^^er se. And in 
other cases of special damage there is no possible hardship in 
the old rule ; for the plaintiff must be aware of the names of 



3i6 DAMAGES. 

the master wlio has dismissed him, and of the friends "who 
formerly showed him hospitality. 

Illiistraiions. 

The plaintiff alleged that in conse(|uence of the defendant's slander, she 
had " lost several suitors." This was held too general an allegation : for 
the names of the suitors could hardly have escaped the plaintiff's memory. 
Barnes v. Prudlin, vcl Bruddd, 1 Sid. 396 ; 1 Ventr. 4 ; 1 Lev. 

261 ; 2 Keb. 451. 
See also, Hunt v. Jones, Cro. Jac. 499. 

Davies and TVifev. Solomon, L. E. 7 Q. B. 112 ; 41 L. J. Q. B. 10 ; 
20 W. E. 167 ; 25 L. T. 799. 
The defendant slandered a dissenting minister, who averred that his con- 
gregation diminished in consefiuence. Held, too general an 'averment to 
constitute special damage, the names of the absentees not being given. 

Hoimood V. ' Thorn, 8 C. B. 293 ; 19 L. J. C. P. 94 ; 14 Jur. 87. 
Such an averment Avonld have been sufficient, had the words been spoken 
of the plaintiff in the way of his office, and so actionable per se. 
HaHley v. Herring, 8 T. E. 130. 
Evans v. Harries, 1 H. & N. 254 ; 26 L. J. Ex. 31. 
Dawes intended to employ the plaintiff, a surgeon and accoucheur, at his 
wife's approaching confinement ; bftt the defendant told Dawes that the 
plaintiff's female servant had had a child by the plaintiff : Dawes conse- 
(|uently decided not to employ the plaintiff' : Dawes told his mother and 
his wife's sister what defenclant had said ; and consequently the plaintiff's 
practice fell off considerably among Dawes' friends and acc^uaintance and 
others. The fee for one confinement was a guinea. Held,t\\&t the plaintiff' 
was entitled to more than the one guinea ; the jury should give him such a 
sum as they considered Dawes' custom was worth to him ; but that the 
plaintiff clearly could not recover anything for the general decline of his 
business, which was caused by the gossip of Dawes' mother and sister-in- 
law. 

Dixon V. Bmith, 5 H. & N. 450 ; 29 L. J. Ex. 125. 

The law is the same in America : — 

The plaintiff' alleged that the defendant's Avords had ''injured her in her 
good name, and caused her relatives and friends to slight and shun her." 
This was held to disclose no special damage. 

Bassell v. Elmore, 48 N. Y. E. 563 ; 65 Barbour 627. 
So where the allegation was merely that by reason of defendant's words 
" the j)laintiff had been slighted, neglected, and misused by the neighbours 
and her former associates, and turned out of doors." 
Pettihone v. Simpson, 66 Barb. 492. 
A general allegation that by reason of defendant's acts, plaintiff hatl been 



SUBSEQUENT DAMAGE. 317 

compelled to pay a large sum of money, without showing how, was held 
insufficient. 

Gooh V. Gook, 100 Mass. 194. 

Follani v. Lyon, 1 Otto (91 U. S.) 225. 

But in Australia a different rule apparently prevails : — 

To say to tlie keeper of a restaurant, " You are an infernal rogue and 
swindler," was held, in the Supreme Court of Victoria, not actionable with- 
out proof of special damage, as not affecting plaintiff in his trade. But the 
plaintiff having alleged that, by reason of the words, people who used to 
frequent his restaurant, ceased to deal with him, it was held the special 
damage made the words actionable, and that the special damage was suffi- 
ciently alleged ; that the cases of frequenters of theatres, members of con- 
gregations, and travellers using an inn, were exceptions to the rule requiring 
the names of the customers lost to be set forth. 

Bmihj V. Youlden, Kerferd & Box's Digest of Victoria Cases, 709 ; 
Mellwurne Argus Reports, 6 Sept. 1867, sed quare. 

Where the words are not actionable without special damage, 
the jury, as we have seen, must confine their consideration to such 
special damage as is specially alleged and proved. It might, 
therefore, very well be argued, on the principle of Bonomi v. 
BacMiouse, 9 H. L. C. 503 ; E. B. & E. 6G2 ; 34 L. J. Q. B. 181, 
that if any fresh damage followed in the future, that would con- 
stitute a fresh ground of action. And of this opinion were 
North, G. J., in Lord Townsheml v. Hughes, 2 Mod. 150, and 
Tindal, C. J., in Goslin v. Gorry, 7 M. & Gr. 345 ; 8 Scott N. R 
21. But BuUer, in his " Nisi Prius," p. 7, lays it down most 
distinctly, that where a plaintiff " has once recovered damages, 
he cannot after bring an action for any other special damage, 
whether the words be in themselves actionable or not." {Fitter 
v. Veal, 12 Mod. 542.) And this rule is obviously more practi- 
cally convenient : it is also in accordance with recent cases, such 
as Stone v. Mayor of Yeovil, 1 C. P. D. 691 ; 45 L. J. C. P. 657 ; 
24 W. R. 1073 ; 34 L. T. 874 ; (C. A ) 2 C. P. D. 99 ; 46 L. J. 
G. P. 137; 25 W. B. 240 ; 36 L. T. 279, and Lamb v. Walker, 
3 Q. B. D. 389 ; 45 L. J. Q. B. 451 ; 26 W. B. 775 ; 38 L. T. 
643, and must therefore, I think, be considered good law. 



3i8 DAMAGES. 

V. — Special Damage where the woeds are 

ACTIOJs^ABLE, l)Cr SC. 

"Where special damage is not essential to tlie action, 
it may still of course be proved at tlie trial to aggravate 
tlie damages. But to entitle sucli evidence to be given, 
tlie special damage relied on must be stated on the 
record Avitli the same particularit}- as is required where 
the words are actionable only by reason of such special 
damage. The defendant is entitled to know beforehand 
Avhat case he has to meet. Thus, in an action bj^ a 
trader for words spoken of him in the way of his trade, 
evidence of a general loss of business is always admis- 
sible ; for this is not sj)ecial damage. But the plaintiif 
cannot be asked whether particular persons have not 
ceased to deal with him, unless the loss of their special 
custom is set out in the ^^leadings as special damage. It 
is clearly right that the defendant should be furnished 
with their names before the trial. 

But though the sj)ecial damage must be laid as ex- 
plicitly whether the Avords be actionable or not, it seems 
that in other respects the law is not quite so strict as to 
what constitutes special damage in the first case as in 
the second. Thus, where the words are not actionable 
]}er se, we have seen that mental distress, illness, expul- 
sion from a religious society, &c., do not constitute 
special damage. But where the words are actionable 
per se, the jury may take such matters into then* con- 
sideration in according damages. "Mental pain or 
anxiety the law cannot value, and does not pretend to y 
redress, Avhen the unlawful act complained of causes 
that atone ; though where a material damage occurs, and 
is connected Avith it, it is impossible a jury, in esti- 
mating it, should altogether overlook the feelings of the 



I 



SPECIAL DAMAGE. 319 

party interested." (Per Lord Wensleydale, in Ljjncli v. 
Knight and wife^ 9 H. L. C. 598. See also Ila/jthoni v. 
Lawson^ 3 C. & P. 196; Le Fanii v. Malcolmson^ 8 Ir. 
L. E. 418.) And had tlie charge against Mrs. Eoberts 
been one of felony I do not think any Jndge wonld have 
excluded the evidence as to her expulsion from her reli- 
gious sect. 

Again, where words are spoken of the plaintiff in 
the way of liis profession or trade, so as to be action- 
able jjer se, the plaintiff may allege and ]3rove a general 
diminution of profits or decline of trade, without naming 
particular customers or proving they have ceased to deal 
with him. (Ashley/ v. Ilat-rison, 1 Esp. 48 ; Peake, 256 ; 
Ingram v. Laivson, 6 Ping. I^. C. 212 ; 8 Scott, 471 ; 
4 Jur. 151 ; 9 C. & P. 326 ; Harrison v. Pearce, 1 F. & 
F. 569, 32 L. T. (Old S.) 298.) [In Delegal v. Ilighleg, 
8 C. & P. 448, Tindal, C. J"., refused to allow any evi- 
dence to be given of general loss of business, on the 
ground that the law akeady presumed such loss in the 
plaintiff's favour; but this decision must now be con- 
sidered over-ruled.] If, however, the plaintiff' desires 
to go into such details at the trial, he must plead them 
specially and call the customers named as witnesses. 
Still, if the customers are not called at the trial, or if for 
any other reason the proof of the special damage fails, 
the plaintiff may still fall back on the general damage 
and prove a loss of income induced by the slander. 
[Cook V. Field^ 3 Esp. 133 ; Evans v. Harries^ 1 H. & jST. 
251 ; 26 L. J. Ex. 31.) This he could not do, had the 
words not been actionable ^?<?/' se : see ante^ pp. 313 — 317. 
But where it is clear that the action lies, and that the 
juiy must find damages to some amount for the j^laintiff, 
evidence as to the nature and extent of plaintiff'' s busi- 
ness before and after publication is necessary to enable 
the jury to fix the amount of damages. 



320 DAMAGES. 

Illustrations. 

Where the defendant published in a newspaper that a certain ship of the 
pkintifF's was nnseawortliy, and had been purchased by the Jews to carry 
convicts, evidence as to the average profits of a voyage was admitted, and 
also evidence that upon the first voyage after the libel appeared the profits 
were nearly £1500 below the average, and this although the action was 
brought immediately after the libel appeared, and before the last-mentioned 
voyage was commenced. The jury, however, awarded the plaintiff' only 
£900 damages. 

Ingram v. Laicson, 6 Bing. N. C. 212 ; 8 Scott, 471. 
Goslin V. Corrij, 7 M. & Gr. 342 ; 8 Scott, N. R. 21. 
Where a declaration alleged that the defendant spoke words of the plaintiff, 
a dissenting minister, in the way of his office and profession, and his con- 
gregation rapidly diminished, and he was compelled for a time to give up 
preaching altogether, and lost profits thereby ; it was held that this was a 
sufficient allegation of special damage, although the members of his con- 
gregation were not named. 

Hartley v. Herring, 8 T. R. 130. 

Hojnvood V. Thorn, 8 C. B. 293 ; 19 L. J. C. P. 94 ; 14 Jur. 87. 
Where words actionable per se are spoken of an innkeeper in the Avay of 
his trade, evidence may be given of a general loss of custom and decline in 
his business. 

Evans v. Harries, 1 H. & N. 251 ; 26 L. J. Ex. 31. 
" Suppose a biscuit baker in Regent Street is slandered by a man saying 
his biscuits are poisoned, and in consequence no one enters his shop. He 
cannot complain of the loss of any particular customers, for he does not 
know them, and how hard and unjust it would be if he could not prove 
the fact of the loss under a general allegation of loss of custom." Per 
Martin, B., in 

Evans v. Harries, 26 L. J. Ex. 32. 

And see Weiss v. JVIiittemore, 38 Michigan 366. 

Where the words are actionable without S23ecial 
damage, the jury must assess the damages once for all : 
for no fresh action can be brought should fi-esh damage 
follow. They should therefore take into consideration 
not only the damage that has accrued, but also such 
damage, if any, as will arise from the defendant's defa- 
matory words in the future. [Fitter v. Veal, 12 Mod. 
642 ; B. I^. P. 7 ; Lord Toiunshencl y. Hughes^ 2 Mod. 
150 ; Ingram v. Lawson, 6 Bing. N. C. 212 ; 8 Scott, 
471 ; 4 Jur. 151 ; 9 C. & P. 326 ; Gregory and another 
V. Williams, 1 C. & K. 568.) 



REMOTENESS. 



321 



VI. — Eemoteness of Damages. 

The special damage alleged must be the natural and 
probable result of the defendant's wrongful conduct. In 
some cases it can be shown that the defendant contem- 
plated and desired such result at the time of publication : 
in other cases the result is so clearly the natural and 
necessary consequence of the libel or slander that the 
defendant must fairly be taken to have contemplated it, 
whether in fact he did so or not. But where the 
damage sustained by the plaintiff is neither the neces- 
sary and reasonable result of the defendant's conduct, 
nor such as can be shoAvn to have been in the defendant's 
contemplation at the time, there the damage will be 
held too remote. Evidence cannot be given at the trial 
of any special damage unless it either flows from de- 
fendant's words in the ordinary course of tilings, or 
through special circumstances known to the defendant 
may be supposed to have been in his contemplation at 
the date of jrablication. 

The special damage must be the direct result of the 
defendant's words. The jmy may not take into their 
consideration any damage which is produced partly by 
the defendant's words and partly by some other fact or 
circumstance unconnected with the defendant. The 
defendant's words must at all events be the predominating 
cause of the damage assigned. 

Illustrations. 

The defendant slandered the plaintiff to his master B. Subsequently B. 
discovered from another source that the plaintiff's former master had dis- 

Y 



322 DAMAGES. 

missed him for misconduct. Thereupon B. discharged the plaintiff in the 
middle of the term for which he had engaged his services. Held that no 
action lay against the defendant ; for his words alone had not caused B. to 
dismiss the plaintiff. 

Vicars v. Wilcox, 8 East 1 ; 2 Sm. L. C. 553 (8th ed.). 

As explained in Lynch v. Knight and wife, 9 H. L. C. 590, 600. 
The plaintiff alleged that certain persons would have recommended him 
to X., Y., & Z., liad not the defendant spoken certain defamatory words 
of him on the Eoyal Exchange, and that X., Y., & Z. would, on tlie 
recommendation of those persons, have taken the plaintiff into their 
employment. The plaintiff claimed damages for the loss of the employ- 
ment. Such damage was held too remote, for it was caused by the non- 
recommendation, not by the defendant's words. 

Sterry v. Foreman, 2 C. & P. 592. 

And see Hoey v. Felton, 11 C. B. N. S. 142 ; 31 L. J. C. P. 105. 
In an action of slander of title to a patent, tlie plaintiff alleged as special 
damage that in consequence of defendant's opposition, the Solicitor-General 
refused to allow the letters-patent to be granted with an amended title, as 
the plaintiff desired. Held that this damage was too remote, being the act 
of the Solicitor-General and not of the plaintiff. 

Haddon v. Lott, 15 C. B. 411 ; 24 L. J. C. P. 49. 

Kerr v. Shedden, 4 C. & P. 528. 
The plaintiff engaged Mdlle. Mara to sing at his concerts ; the defendant 
libelled Mdlle. Mara, who consequently refused to sing lest she should be 
hissed and ill-treated ; the result was that the concerts were more thinly 
attended than they otherwise would have been, whereby the plaintiff lost 
mone3^ Held that the damage to the plaintiff was too remote a consequence 
of defendant's words to sustain an action by the plaintiff. It was, in short, 
not so much the result of defendant's words as of Mdlle. Mara's timidity or 
caprice. 

Ashley V. Harrison, 1 Esp. 48 ; Peake, 256. 

And see Tarleton v. McGawley, Peake, 270. 

Taylor v. Neri, 1 Esp. 386. 

Lumley v. Gye, 2 E. & B. 216. 
The defendant, having had a c^uarrel in tlie street with a negro boy, took 
up a pick-axe and pursued him into the plaintiff's store, where the boy was 
employed. The negro being alarmed, and not able to escape rapidly 
by the back door, which was shut, ran behind the counter to save himself 
from being struck, and in so doing knocked out the faucet from a cask of 
wine standing there, a quantity of which ran out and was wasted. The 
Supreme Court of the State of New York held that the defendant was 
liable to the plaintiff for this loss ; the damage in question being, in their 
opinion, the direct and natural, though not the necessary result of the 
wrongful act of the defendant. 

Vandenhunj v. Truax, 4 Denio, (X. Y.) 464. 

Clark V. Chambers, 3 Q. B. D. 327; 47 L. J. Q. B. 427; 26 W. R. 
613 ; 38 L. T. 454. 
The defendant insinuated that the plaintiff had Ijeen guilty of the murder 



REMOTENESS. 323 

of one Daniel Dolly ; the plaintiff thereupon demanded that an inquest 
should be taken on Dolly's body, and incurred expense thereb3^ Held that 
such expense was recoverable as special damage ; though it was not compulsory 
on the plaintiff to have an inquest held. 

Penke v. Oldham, Cowp. 275 ; 2 W. Bl. 960, 
The defendant said to Mr. Knight of his wife Mrs. Knight, " Jane is a 
notorious liar .... she was all but seduced by a Dr. C, of Roscommon, 
and I advise you, if C. comes to Dublin, not to permit him to enter your 
place .... She is an infamous wretch, and I am .sorry that you had the 
misfortune to marry her, and if you had asked my advice on the subject, I 
would have advised you not to marry her." Knight thereupon turned his 
wife out of the house and sent her home to her father, and refused to live 
with her any longer. Held that loss of consortium of the husband can 
constitute special damage ; but that in this case the husband's conduct was 
not the natural or reasonable consequence of defendanVs slander. Secus, 
had the words imputed actual adultery since the marriage. 

Allsoj) V. Allsop, 5 H. & N. 534 ; 29 L. J. Ex. 315 ; 6 Jur. N. S. 
433 ; 8 W. E. 449 ; 36 L. T. (Old S.) 290. 

Affirmed in Lynch v. Knight and wife, 9 H. L. C. 577. 

Parkins et ux. v. Scott et nx., 1 H. & C. 153; 31 L. J. Ex. 331 ; 
8 Jiir. N. S. 593 ; 10 ^Y. R. 562 ; 6 L. T. 394, post, p. 330. 
A declaration alleged that the defendant falsely and maliciously spoke of 
the plaintiff", a working stonemason, " He was the ringleader of the nine 
hours' system," and "He has ruined the town by bringing about the nine 
hours' system," and " He has stopped several good jobs from being carried 
out, by being the ringleader of the system at Llanelly," whereby the plaintiff' 
was prevented from obtaining employment in his trade at Llanelly. Held, 
on demurrer, that the alleged damage was not the natural or reasonable 
consequence of the speaking of such words, and that the action could not be 
sustained. 

Miller v. Darid, L. R. 9 ( !. P. 118; 43 L. J. C. P. 84 ; 22 W. R. 
332 ; 30 L. T. 58. 



Damage whicli lias resulted to A. in consequence of 
the defendant's having defamed B., is too remote to 
constitute special damage in any action brought by B. 
Whether A., who has himself suffered the damage, can 
sue, depends upon the closeness of the relationship 
between A. and B. If A. is B.'s master, A. may have 
an action on the case per quod scrvitium amisit. If A. is 
B.'s husband, then it is clear law, that the husband may 
sue for any special damage which has accrued to him 
thi-ough the defamation of his wife. But a wife cannot 

Y 2 



324 DAMAGES. 

recover for any special damage which •words spoken of 
her have inflicted on her hnsband. {Harwood et ux. v. 
Hardiviclc et ux. (1668), 2 Keble, 387.) 

This rule presses very harshly upon married women ; for 
before the Married Women's Property Act there was hardly any 
special damage which they could suffer. Their earnings were 
their husband's ; so was their time. Lord Wensleydale, in 
Lynch v. Knight & ivife, 9 H. L. C. 597, even doubted if 
loss of consortium of her husband was such special damage as 
would sustain an action of slander by a wife. Loss of the society 
of her friends and neighbours clearly is not. The only special 
damage in fact which a married woman could set up was loss of 
hospitality. And even in conceding her this, the judges seemed 
to be straining the law, for her husband was bound to maintain 
her : so that such gratuitous entertainment was really a saving 
to the husband's pocket. But in Davies v. Solomon, L. R. 7 
Q. B. 112 ; 41 L. J. Q. B. 10; 20 W. K. 107; 25 L. T. 799, 
the judges declined to scrutinize too nicely into such matters : 
and no doubt the loss is really the wife's. Her friends would 
supply her with better and other food than that which the law 
compels her husband to afford her. The operation of the 
Married Women's Property Acts, 1870 and 1874, may lessen 
the hardship. In some cases the difficulty might perhaps have 
been obviated, had the husband sued alone. 

Illustrations. 

If one partner be libelled he cannot recover for any special damage which 
has occurred to the firm. 

Solomons & others v. Medex, 1 Stark. 191. 

Eobmson v. Marchant, 7 Q. B. 918 ; 15 L. J. Q. B. 134 ; 10 Jur. 
156. 
Similarly, if the firm be libelled as a body, tliey cannot jointly recover 
for any private injury to a single partner : thoixgh that partuer may now 
recover his individual damages in the same action. 
Haythorn v. Laivson, 3 U. & P. 196. 

Le Fanu v. Malcolmson, 1 H. L. C. 637 ; 8 Ir. L. K. 418 ; 13 
L. T. 61. 
Where the libel imputed that the plaintiff, a married man, kept a gaming- 
house, and that his wife was a woman of notoriously bad character, and his 
wife suffered greatly in her mind in conseriuence and became ill and died, 



ACT OF A THIRD PARTY. 325 

evidence of sucli damage was excluded in an action brought by the sur- 
W^dng husband. 

Guy V. Gh-egory, 9 C. & P. 584. 

And see Wilson v. Goit, 3 Smith, (17 N. Y. R.) 445, ante, p. 313. 
Where words actionable per se were spoken of a married woman, she was 
allowed to recover only 20.s. damages; all the special damage which she 
proved at the trial was held to have accrued to her husband, and not to 
her : he ought, therefore, to have sued for it in a separate action (or count 
since the C. L. P. Act, 1852; 15 & 16 Vict. c. 76, s. 40; Jud. Act, 1875, 
Order XVII. r. 4). 

Dengate v. Gardiner, 4 M. & W. 5 ; 2 Jur. 470. 
A declaration by husband and wife alleged that the defendant falsely 
and maliciously spoke certain words of the mfe imputing incontinence to 
her, whereby she lost the society of her neighbours, and became ill and 
unable to attend to her necessary affairs and business, and her husband 
incurred expense in curing her, and lost the society and assistance of his 
wife in his domestic affaii's. Held that the declaration disclosed no cause 
of action, 

Allsop midwife v. Allsop, 5 H. & K 534; 29 L. J. Ex. 315; 
6 Jur. N. S. 433 ; 8 W. R. 449 ; 36 L. T. (Old S.) 290. 

Approved in Lynch v. Knight and wife, 9 H. L. C. 577. 
[N.B. — The excommunication case Barnabas v. Traunter, 1 Yin. Abr. 396 ; 
ai^te p. 59, was not cited to the court in this case.] 

Where words were spoken imputing unchastity to a woman, and by reason 
thereof she was excluded from a private society and congregation of a sect 
of Calvinistic Methodists, of which she had been a member, and was pre- 
vented from obtaining a certificate without which she could not become a 
member of any other society of the same nature. Held that such a result 
was not such special damage as would render the words actionable. 

Roberts and wife v. Roberts, 5 B. & S. 384 ; 33 L. J. Q. B. 249 ; 
12 W. R. 909 ; 10 L. T. 602 ; 10 Jur. N. S. 1027. 



The act of a third party, if caused by the defendant's 
language, is not too remote ; and this, whether such act 
be in itself a ground of action by the plaintiff against 
such third party or not. But of course the act of the 
third party must be the result of the defendant's words 
and such a result as the defendant either did contem- 
plate or ought to have contemplated. The defendant 
cannot be held liable for any eccentric or foolish conduct 
on the part of the person he addressed ; but only for the 
ordinary and reasonable consequences of his words. 



226 DA.VAGES. 

Formerly this was much doubted ; it was held, iu Vicars v. 
Wilcox, 8 East 1 ; 2 Sin. L. C. 553 (8th edition), that where 
the plaintiff's master was induced by the slander to dismiss the 
plaintiff from his em|)loy, before the end of the term for which 
they had contracted, such dismissal was too remote to be special 
damage ; because it was a mere wrongful act of the master, for, 
which the plaintiff could sue him. The same doctrine was 
laid down in Morris v. Langclale, 2 B. & P. 284, and Kelly v. 
Partington, 5 B. & Ad. 645 ; 3 N. & M. 116. But this case is 
clearly contrary to Davis v. Gardiner, 4 E.ep. 16, ante, p. 810, 
and the numerous other cases in which loss of a marriage was 
held to constitute special damage, although the plaintiff there 
had an action for breach of promise of marriage. Doubts were 
thrown on Vicars v, Wilcox, in Knight v. Gibbs, 1 A. & E. 43 ; 
8 N. & M. 467, and in Green v. Button, 2 C. M. & K. 707, 
and it must now be taken to have been overruled by the dicta 
of the Law Lords in Lynch v. Knight and uife, 9 H. L. C. 
577, and by the decision in Luniley v. Gye, 2 E. & B. 216. 
And it is now, I think, clear law that the defendant is liable 
for any illegal act which it was his obvious intention, or the 
natural result of his words, to iiiduce another to commit. " To 
make the words actionable, by reason of special damage, the 
consequence must be such as, taking human nature as it is with 
its infirmities, and having regard to the relationship of the 
parties concerned, might fairly and reasonably have been 
anticipated and feared would follow from the speaking of the 
words." (Per Lord Wensleydale in Lynch v. Knight and 
luife, 9 H. L, C. p. 600.) "If the experience of mankind 
must lead any one to expect the result, the defendant will be 
answerable for it." (Per Littledale, J., in R. v. Moore, 3 B. & 
Ad. 188.) 

Lllustrations. 

If I tell a master falsely that his servant has robbed hiiii and thereupon 
he instantly dismisses him, I must be taken to have contemplated this as 
a natural and probable consequence of my act. But if the master horse- 
whips his servant instead of dismissing him, this is not the natural result 
of my accusation ; I could not be held lialde for the assault as special 
damage. See per Williams, J., in 

Haddon v. Loit, To C. B. 411 ; 24 L. J. C. P. 50. 



ACT OF A THIRD PARTY. 327 

" Su])pose tliat during the war of 1870, an Englishman had been pointed 
out to a Parisian mob as a German spy, and thrown by them into the Seine, 
it couki not be contended that one act was noi the natural and necessary 
consequence of the other." Mayne on Damages, 3rd ed., by Lumley Smith, 
1). 426. And see such cases as 

Lee V. miey, 18 C. B. N. S. 722. 

Sneesby v. Lancashire and Yorkshire liy Co., L. R. 9 Q. B. 263 ; 

43 L. J. Q. B. 69 ; 30 L. T. 492 ; (and in C. A.) 1 Q. B. D. 42 ; 

45 L. J. Q. B. 41 ; 24 W. R. 99 ; 33 L. T. 372. 

A man may not recover the same damages for the same injury twice from 

two different defendants ; but he may recover from two different defendants 

damages 2)ioportioned to the injury each has occasioned, and clearly where 

words are spoken by a defendant icith the intent to make a third person 

break his contract with the plaintiff", the fact that such person did break 

his contract with the plaintiff in consequence of what the defendant said, may 

be proved as special damage against that defendant. 

Carrol v. Falkiner, Kerferd & Box's Digest of Victoria Cases, 216. 

It is not essential that the third person, whose act 
constitutes the special damage, should believe the words 
spoken by the defendant, if it is shown that the words 
spoken did directly induce the act. The law is other- 
wise in America. 

Illusti'ations. 

The plaintiff" and another young woman worked for Mrs. Enoch, a straw- 
lionnet-niaker, and Lived in her house. Mrs. Enoch's landlord, who lived 
two doors off, came to Mrs. Enoch and complained that the plaintiff and 
lier fellow-lodger had made a great noise and been guilty of openly 
outrageous conduct. Mrs. Enoch thereupon dismissed them from her 
employ, not because she believed the charge made, but because she was 
afraid it v\-ould offend her landlord if they remained. Held that the 
special damage was the direct consequence of the defendant's word. 

Kni(jht v. Gihhs, 1 A. & E. 43 ; 3 N. & M. 467. 

And see Gillett v. Bullivant, 7 L. T. (Old S.) 490, post p. 332. 
But where the plaintiff' was under twenty-one and lived at home with her 
i'ather, and the defendant foully slandered her to her father, in consequence 
of which he refused to give her a silk dress and a course of music lessons on 
the piano which he had promised her, although he entirely disbelieved the 
defendant's story, this was held in America not to be such special damage as 
Avill sustain the action, on the ground that such treatment by a parent of 
his child is not the natural result of a falsehood told him against her. Per 
Grover, J. : "I do not think s])ecial damage can lie predicated .upon the act 
of any one who wholly disbelieves the truth of tlie story. It is inducing 
acts injurious to the plaintiff", caused by a belief of the truth of the charge 



328 DAMAGES. 

made by the defendant, that constitutes the damage which the law 
redresses. " 

Anon., 60 N. Y. 262. 

And see Wilson v. Goit, 17 N. Y. 445. 



But where the wrongful act of the third person is 
vohmtary and spontaneous, there, as a rule, he alone is 
liable for it. This is especially the case where A. tells 
a falsehood against the plaintiff to B., which B. repeats, 
and from B.'s repetition special damage flows : here the 
plaintiff cannot recover for such special damage from 
A. ; and indeed if the words be not actionable per se, he 
cannot sue A. at all : his only action is against B. For 
B. acted consciously and voluntarily ; the repetition is 
his own unlawful act ; for the consequences of which he 
alone is answerable. By repeating A.'s words, B. 
became an independent slanderer. 

The law is not quite so restricted in cases of libel ; 
every one in any way concerned in the publication of a 
libel is equally responsible for all the damages which 
flow from that jjublication. Thus, if I Avrite you a 
private letter containing a libel on A., and you show the 
letter to various persons, one of whom acts on it to A.'s 
prejudice, we both are liable to an action ; for I set the 
libel in circulation. But if, instead of merely" showing 
my letter, j^ou make a copy of it and send it to a news- 
paper to be published to all the world, without my 
leave, and in a way which I could not have anticipated, 
then this republication is your own unlawful act, for the 
consequences of wliich you alone are liable. Secus if I 
either requested or expected and intended joii to publish 
it. (Seejyosz', pp. 360 — 365.) 

Thus, it may happen that a person who invents a he and 
maliciously sets it in circulation, may sometimes escape punish- 
ment altogether, while a person who is merely injudicious may 



i 



REPETITION. 329 

be liable to an action through incautiously repeating a story 
which he believed to be the truth, as he heard it told frequently 
in good society. For if I originate a slander against you of 
such a nature that the words are not actionable j)ev se, the 
utterance of them is no ground of action, unless special damage 
follows. If I myself tell the story to your employer, who there- 
upon dismisses you, you have an action against me ; but if I 
only tell it to your friends and relations, and no pecuniary 
damage ensues from my own communication of it to any one, 
then no action lies against me, although the story is sure to get 
round to your master sooner or later. 

The unfortunate man whose lips actually utter the slander to 
your master is the only person that can be made defendant ; 
for it is his publication alone which is actionable as causing 
special damage. 

As to this state of the law, see the remarks of Kelly, C.B., in 
Biding v. Smith, 1 Ex. D. 94 ; 45 L. J. Ex. 281 ; 24 W. R. 487 ; 
34 L. T. 500, who differed from Pollock and Huddleston, B.B., 
in denouncing the decision in Ward v. Weeks, 7 Bing. 211 ; 4 
M. & P. 790, which they maintained. 

It might, perhaps, have been argued formerly, in analogy to 
the principle of Scott v. Shepherd, 1 Sm. L. Cases (8th ed.), 
466 ; 2 Wm. Bl. 892 ; 3 Wils. 403, that he who invented the 
slander and first set it in circulation, is as liable as he who " gave 
the mischievous faculty to tlie squib " and first started it on its 
wild career across the market-house at Milborne Port. But it 
will be remembered that the decision in that famous case turns 
expressly on the assumption that Willis and Ryal were not to 
be considered free agents, that what they did was "by necessity," 
was " the inevitable consequence of the defendant's unlawful 
act." Had they been considered as free agents voluntarily 
intervening, the other judges would have agreed with Black- 
stone, J. On principle, therefore, it is clearly good law to '^ 
hold that when the repetition of the slander is spontaneous and j^ ^^^^^ 
unauthorised, when it is the voluntary act of a free agent, the tvLu^«^ 
originator of the slander is not answerable for any mischief caused '-'•f'-**^^**'^ 
by such repetition : and this principle is also far too strongly ^Xl*''^^ 
established by authority to be easily, if ever, shaken. (See'iJ-^-*-^ 
Ward V. Weeks, 7 Bing. 211 ; Rutherford v. Evans, 4 C. & P. 1 
79 ; Tunniclife v. Moss, 3 C. & K. S3 ; Parkins et ux, v. Scott j 



330 DAMAGES. 

et ux., 1 H. & C. 153; 31 L. J. Ex. 331 ; 8 Jur. N. S. 593 ; 
Dixon V. kimitli, 5 H. & N. 450; 29 L. J. Ex. 125 ; Bateman 
V. Lyall, 7 C. B. N. S. 638 ; Clarke v. Morgan, 38 L. T. 354, 
in winch last case Lindley, J., expressly states his opinion that 
the decisions in Word v. Weels and Parkins v. Scott have 
been in no way overruled by Biding v. Smith and Evans v. 
Harries, 2C L. J. Ex. 31 ; 1 H. & N. 254. It is only in cases 
where the words are not actionable per se, that the rule as to 
the remoteness of damages inflicts this apparent hardship upon 
the plaintiff ; for where the words are actionable per se, and in 
all cases of libel, the jury find the damages generally, and will 
be careful to punish the author of a pernicious falsehood with 
all due severity ; although, of course, the judge will still direct 
them not to take into their consideration any damage which 
ensued from a repetition by a stranger. (Rutherford v. Evans 
(1829), 4 C. & P. 79 ; Tunniclife v. Moss, 3 C. & K. 83.) 

Illustrations. 

Weeks was speakii:g to Bryce nf the i)laintiff, and said, '•' He is a rogue 
and a swindler ; I know enoiigli about liini to hang him." Bryce repeated 
this to Bryer as Weeks' statement. Bryer consecxuently refused to trust 
the plaintiff. Held that the judge was right in nonsuiting the plaintiff : 
for the words were not actionaljle ^j«- se, and the damage was too remote. 

TVard v. TFeeh, 7 Bing. 211 ; 4 M. & P. 796. 

Hirst V. Goodwin, 3 F. & F. 257. 
A groom in a passion called a lady's-maid " a whore." A lady, hearing 
the groom had said so, refused to afford the lady's-maid her customary 
hospitality. Held that no action laj--, for the groom had never spoken to 
the lady. 

Clarhe v. Morgan, 38 L. T. 354. 

Dixon V. Smith, 5 H. & N. 450 ; 29 L. J. Ex. 125, ante, p. 316. 
. The defendant's ^\^.fe charged Mrs. Parkins ^ath adultery. She in- 
dignantly told her husband, and he was unreasonable enough to insist upon 
a separation in consecjuence. Held that the defendant was not liable. 

Parkins et ux. v. Scott et ux., I H. & C. 153 ; 31 L. J. Ex. 331 ; 
8 Jur. N. S. 593 ; 10 W. R. 562 ; 6 L. T. 394. 
Bingham caused a libel on plaintiff, the proprietor of a newspaper, to be 
printed by Hinchcliffe as a placard, and distributed 5000 such placards. 
He also put the same libel into a rival newspaper, the defendant's, as an 
advertisement. Plaintiff' sued both Bingham and Hinchcliffe as well as the 
defendant, alleging that the circulation of his paper had greatly declined. 
The action against the defendant came on first, and his counsel, having 
failed to prove the ji;stification pleaded, contended that the decline of 



REPETITION. 331 

circulation must principally be ascribed to the 5000 placards, not to the fi^u. ^ 
advertisement. IMartin, B., while admitting tliat defendant was not liable '^'-^'^j^ ^ 
for damage caused by the placards, ruled that it lay on defendant to prove ^'=''*''^ 
that the damage sustained l^y the plaintiff was in fact due to the placard, , ^^^^^^_^ 
and not to the advertisement. Verdict for the plaintiff, 500/. In the ^ IUjjL > 
action against Bingham and Hinchcliffe plaintiff recovered only 40s. The^:^,,^^^,^.,^ ^ 
bOOl. Avas probably due to the justification pleaded and not proved, t^j,.*,^ K^ Uj4- 
Harrison v. Pearce, 1 F. & F. 567 ; 32 L. T. (Old S.) 298.''^tJ,A^h^"cl ^ 

But this rule, that the originator of a slander, not 
actionable per se, is not liable for damage caused by its 
repetition, cannot of course override the general jDrin- 
ciple that every man will be liable for the natural and 
necessary consequences of his act. And it may well be 
that the repetition of a slander may be the natural and 
necessary consequence of defendant's original publica- 
tion. It cle^ rljj ^ ^Q whenever the original communica - 
tion made to A., places A. under a moral obligation to 
repeat the slander to B. And, indeed, if defendant 
knew the relation in which A. stood to B., he will be 
taken to have maliciously contemplated and desired this 
result when he spoke to A. So, again, whenever the 
first publisher either expressly or implicitly requested 
or procured the rej)etition ; then he will of course be 
liable for all the mischief caused by the act of his agent, 
and the agent would be liable also. 

In America the judges in one or two cases appear to carry 
this doctrine further, and seem to lay down the rule that 
wherever the repetition is innocent (that is, I presume, not 
malicious, and on a privileged occasion), the originator must be 
hable for all consequential damage caused by the repetition ; 
for else, it is said, the person injured would be without a remedy. 
He cannot sue the person repeating the slandei", as the 
repetition is privileged ; therefore he mast be able to sue the 
first ]»idolislKr for the damage caused by his own publication, 
and by the innocent repetition as well. " Where slanderous 
words are repeated innocently and without an intent to defame, 
as under some circumstances they may be, I do not see why the 



332 DAMAGES. 

author of the slander should not be held liable for injuries 
resulting from it as thus repeated, as he would be if these 
injuries had arisen directly from the words as spoken by 
himself." [Fcr Beardsley, J., in KeenhoUs v. Becker, 3 Denio 
N. Y. 352, and see Terv:iUiger v. Wands, 17 N. Y. 58.) But 
this is not the law of England, at all events ; it by no means 
follows that because the repetition is privileged or innocent, 
that it is therefore the natural and necessary consequence of 
the prior publication. In Parkins v. Scott the repetition was 
clearly imiocent ; yet no action lay against the origiual defamer. 
Mrs. Parkins was in fact held to have no remedy. So also in 
Hohvood V. Hopkins, Cro. Eliz. 787, the communication would 
probably in the present day be deemed privileged. 



lUustrations. 

The plaiutiff was guverness to Mr. L.'s children ; the defendant tokl her 
lather that she had had a child by Mr. L. : the father went straight to 
I\rr. L. and told him what defendant had said. Mr. L. thereupon said that 
tlie plaintiff had better not return to her duties, for although he knew that 
the charge was perfectly false, still for her to continue to attend to his 
children, would be injurious to her character and unpleasant to them both. 
Held that the repetition by the father to Mr. L., and his dismissal of the 
plaintitf, were both the natural consequences of the defendant's publication 
to the father. 

Gillett v. Bullivcmt, 7 L. T. (Old S.) 490. 
Foides V. Bowen, 3 Tiff. (30 N. Y.) 20. 

A police magistrate dismissed a trumped-up charge brought by the 
plaintiff, a policeman, and added : " I am bound to say, in reference to this 
charge and a similar one brought from the same spot a few days ago, that I 
cannot believe William Kendillon on his oath." This observation was 
duly reported to the Commissioners of Police, who in consequence dismissed 
the plaintilf from the force. Lord Denman held that the dismissal was 
special damage for M-hich the defendant would have been liable, if the action 
had lain at all : for he must have known that such a remark would 
certain!}' be reported to the commissioners, and would most probably cause 
them to dismiss the plaintiff. Nonsuit on the ground of privilege. 
KeitdiUoii V. Malthy, 1 Car. & Marsh. 402. 

[N.B. The report of this case in 2 Moo. & Eob. 438, refers only to thi^ 
point of privilege.] 

H. told Mr. Watkins that the plaintiff, his wife's dressmaker, was a 
woman of immoral character. IMr. Watkins naturally informed his wife of 
this charge, and she ceased to employ the plaintiff. Held that the plaintiff's 



REPETITION. 



533 



loss of Mrs. Watkins' custom was the natural and necessary consequence of 
the defendant's communication to Mr. Watkins. 

Dernj v. Handleu, 16 L. T. 263. 
If the defendant makes an oral statement to the reporter of a newspaper, 
intending and desiring him to insert the substance of it in the paper, he is 
liable for all the conseciuences of its appearing in print, although he may 
not have expressly requested the reporter to publish it. 

Bund V. Douglas, 7 C. & P. 626. 

B. V. Lovett, 9 C. & P. 462. 

Adams v. Kelhj, Ry. & Moo. 157. 

R. V. Cocker, 8 Q. B. 533 ; 15 L. J. Q. B. 206. 



CHAPTEE XI. 

COSTS. 

If an action of slander or libel be tried by a jury, the 
costs always follow the event unless, upon application 
made at the trial for good cause sho^ii, the Judge before 
whom such action is tried, or the Court, shall otherwise 
order. (Order LY. r. 1.) If by any chance such an 
action be tried by a Judge alone (which it very seldom 
is, except in the case of trade libels ; Thomas v. Williams^ 
14 Ch. D. 864 ; 49 L. J. Ch. 605 ; 28 W. E. 983 ; 43 
L. T. 91), the costs are absolutely in his discretion. 
The provisions of the C^ounty C^ourts Act, 1867 (30 
& 31 Yict. c. 142, s. 5), no longer apply to actions of libel 
or slander, since s. 67 of the Jndicatui-e Act, 1873, 
came into operation : for no action of either slander or 
libel can be brought in the C-ounty Court, except by 
consent. 

Formerly the provisions of the Coimty Courts Act applied 
to all actions, whether they could be brought in the County 
Coujt or not ; the words of the Act being wider than the 
Legislature intended. {Sampson v. Machay, L. R. 4 Q. B. 
643 ; 10 B. & S. 694 ; 88 L. J. Q. B. 245 ; 17 W. R 883 ; 20 
L. T. 807 ; Gray v. TIW et ux., L. R. 4 Q. B. 175 ; 9 B. & S. 
196 ; 38 L. J. Q. B. 78 ; 17 W. R 497 ; 20 L. T. 221 ; Craven 
V. Smith, L. R. 4 Ex. 146 ; 88 L. J. Ex. 90 ; 17 W. R. 710 ; 20 
L. T. 400 ; Kent v. Leivis, 21 W. R. 413.) Formerly also the 
provisions of LordDenman's Act (3 & 4 Vict. c. 24, s. 2) applied 
to actions of slander and libel, and therefore a plaintiff who 



PARTNERS. 365 

of the libel, within the meaning of 6 & 7 Vict. c. 96, s. 7, and that, as the 
learned judge at the trial had summed up in terms which might have led 
the jiuy to sujapose that it was, and the jury had apparently given their 
verdict on tliat footing, there must be another new trial. 

E. V. Holhroolc c(j others, 4 Q. B. D. 42 ; 48 L. J. Q. B. 113 ; 27 
W. R. 313 ; 39 L. T. 536 ; 14 Cox, C. C. 185. 
The prosecutor, Mr. .John Howard, Clerk of the Peace for the borough of 
Portsmoutli, died shortly afterwards, so the proceedings dropped, and no 
third trial ever took place. 

9. Partners. 

Partners could always jointly sue for a libel defama- 
tory of the firm. ( Ward and another v. /Smith, 6 Bing. 
749 ; 4 C. & P. 302 ; Le Fanu v. 3falcolmson, 1 H. L. 
C. 637.) But in such an action no damages could for- 
merly have been given for any private injury thereby 
caused to any individual partner ; nor for the injury 
to the feelings of each member of the firm. Only joint 
damages could be recovered in the joint action; for the 
basis of such action was the injury to their joint trade. 
{Hay thorn v. Laivson, 3 C. & P. 196 ; Robinson v. Mar- 
chant, 7 Q. B. 918 ; 15 L. J". Q. B. 134.) But now, by 
virtue of Order XYII., r. 6, " claims by plaintiffs 
jointly may be joined with claims by them or any of 
them separately against the same defendant." And see 
Order XVL, r. 1. Hence it is no longer necessary to 
bring two actions for the same words : each individual 
partner may, in any action brought by the firm, recover 
separate damages for any special injury done to himself, 
if properly claimed in the statement of claim, the firm 
at the same time recovering their joint damages. (See 
Booth and others v. Briscoe, 2 Q. B. D. 496 ; 25 W. E. 
838, post, p. 370.) If, however, one partner be defamed 
as to his private life, the conduct of the firm not being 
attacked directly or indirectly, nor any special damage 
resulting to them from defendant's words ; tlien the 
individual partner should, of course, sue alone. 



366 THE LAW OF PERSOXS. 

Partners may sue or be sued in tlie name of their 
firm ; but any other j^arty to the action may, in such a 
case, apply by summons to a Master at Chambers or a 
District Eegistrar for a statement of the names of the 
partners in such firm. (Order XYI., r. 10.) And 
where partners are suing in the name of the firm, they 
must, on demand in wiiting by or on behalf of the defen- 
dant, disclose the names and places of residence of all 
the persons constituting the firm; the proceedings never- 
theless continuing in the name of the firm. If the 
plaintiffs or their solicitor fail to comply with such 
demand, a Master at Chambers or District Eegistrar will 
stay all proceedings. (Order XVIL, r. 2.) If both 
joint and several damages be claimed, the j)artners 
should sue in their o^^ti names, either with or without 
the name of the firm. 

If a partner conducting the business of a firm causes 
a libel to be published on a rival firm, the firm will be 
liable as well as the individual partner. So, if any 
agent or servant of the firm defames any one by the 
express direction of the fii-m, or in accordance with the 
general orders given b}^ the firm for the conduct of their 
business. {^Scc Master and Servant, ante^ p. 360.) But 
if there be any doubt as to the liability of the fii'm, it is 
always safer to join the individual partner or agent or 
servant as a co-defendant with the firm, i^^ee Order 
XYI., r. 3.) "Any person carrying on business in the 
name of a firm apparently consisting of more than one 
person may be sued in the name of such firm.'' (Order 
XYI., r. 10 a.) Where partners are sued in the name 
of their firm the)^ must appear individually in their own 
names. But all subsequent proceedings continue in 
the name of the firm. (Order XIL, rr. 12, 12 a.) 
Where judgment has been obtained against a firm, it 
may be enforced against the property either of the 



CORPORA TIONS. ^67 

firm or of anyone proved or admitted to be a partner. 

(Order XLII., r. 8.) 

Illustrations. 

If one partner be libelled in his private capacity he cannot recover for 
any special damage wliich lias occurred to the business of the firm. All 
the partners should sue for that jointly. They may now do so in the same 
action. 

Solomnns t£- others v. Medex, 1 Stark. 191. 

Robmson v. Marchant, 7 Q. B. 918 ; 15 L. J. Q. B. 134 ; 10 Jur. 

156. 
Cook cO another v. BatcheUor, 3 Bos. & Pul. 150. 
Maitland t& others v. Goldney cC; another, 2 East, 426. 
Similarly, if the firm be libeUed as a body, they cannot jointly recover 
for any private injury to a single partner : though that partner may now 
recover his individual damages in the same action. 
Haythorn v. Laioson, 3 C. & P. 196. 

Le Fanu v. Malcolmson, 1 H. L. C. 637 ; 13 L. T. 61 ; 8 Ir. L. R. 
418. 
But if insolvency be imputed to one member of a firm, this is a reflection 
on the credit of the firm as well : therefore either he, or the firm, or both 
may sue, each for their own damages. 

Harrison v. Bevington, 8 C. & P. 708. 

Foster £• others v. Lawson, 3 Bing. 452 ; 11 Moore, 360. 



10. Corporations and Companies. 

A corporation may sne for any libel npon it, as distinct 
from a libel upon its individual members. It may also 
sue for a slander upon it in the way of its business or 
trade. If, however, the corporation be not engaged in 
any business, it would probably be necessary to prove 
special damage in any case of slander. 

A corporation " could not sue in respect of an impu- 
tation of murder, or incest or adultery, because it could 
not commit those crimes. IS^or could it sue in respect of 
a charge of corruption ; for a corporation cannot be 
guilty of corruption, although the individuals composing 
it may be." {Fer Pollock, C.B., 4 H. & I^. 90.) 

The law is the same with regard to unincorporated 
trading companies, which may sue for libel in the manner 



368 THE LAW OF PERSONS. 

directed b)^ the special Act creating them, or any statute 
applicable to them. (Williams v. Beaumont^ 10 Bing. 
260 ; 3 M. & Scott, 705.) 

Corporations and companies may maintain actions for 
slander of their title ; whether the slander be uttered by 
one of tlieii' oy\Ti members or by a stranger. [Metropolitan 
Omnibus Co. v. Hawkins, 4 H. & I^. 87 ; 28 L. J. Ex. 
201 ; 5 Jnr. N. S. 226 ; 7 W. E. 265 ; 32 L. T. (Old 
S.), 281 ; Trenton Insurance Co. y. Ferrine, 3 Zab. (Xew 
Jersey), 402.) 

A corporation will not, it is submitted, be liable for 
any slander uttered by an officer, even though he be 
acting honestly for the benefit of the company and within 
the scope of his duties, unless it can be proved that the 
corporation expressly ordered and directed that officer to 
say those very words : for a slander is the voluntary and 
tortious act of the speaker. 

A corporation will be liable to an action for a libel 
published by its servants or agents, whenever such pub- 
lication comes within the scope of the general duties of 
such servants or agents, or whenever the corporation 
has expressl}^ authorized or directed such publication ; 
(see ante, Master and Servant, p. 360 ; Yarborouffh v. 
Ba?ik of England, 16 East, 6; Latimer v. Western Morning 
Neivs Co., 25 L. T. 44 ; Alexander v. N. E. Rg. Co., 6 
B. & S. 340; 34 L. J. Q. B. 152; 11 Jm-. X. S. 619; 
Laivless v. Anglo- Eg gptian Cotton Co., L. E. 4 Q. B. 262; 
10 B. & S. 226 ; 38 L. J. Q. B. 129 ; 17 W. E. 498. 
And in America, Aldrich v. Press Printing Co., 9 Min. 
133.) 

Whether a corporation can be guilty of express malice, 
so as to destroy ^ prima facie privilege arising from the 
occasion of publication has not yet been decided ; but 
semble {per Lord Campbell, C.J., E. B. & E. 121 ; 27 L. 
J. Q. B. 231,) it can. 



JOIXT PLAINTIFFS. 369 

A corporation can be indicted for libel and fined. 
[Per Lord Blackburn in Pharmaceutical Socictij v. London 
and Provincial Supplij Association, 5 App. Cas. 8G9, 870 ; 
49 L. J. Q. B. 742 ; 28 W. E. 9G0 ; 43 L. T. 389 ; dis- 
senting from the remarks of Bramwell, L.J., in tlie 
Court below, 5 Q. B. D. 313; 49 L. J. Q. B. 338; 28 
W. R. 608 ; 42 L. T. 569. 

Illustrations. 

A joint-stock company incorporated under the 19 & 20 Vict. c. 47, may 
sue in its own corporate name for words imputing to it insolvency, dis- 
honesty, and mismanagement of its affairs, and this although the defendant 
be one of its own shareholders. 

Metrojiolitan Omnibus Co. v. Hairkins, 4 H. & X. 87 ; 28 L. J. 
Ex. 201 ; 5 Jur. N. S. 226 ; 7 W. E. 265 ; 32 L. T. (Old S.) 
281. 
Where, before the 19 & 20 Vict. c. 47, a joint-stock insurance company 
though not incorporated, was authorised by statute to sue in the name of 
its chairman, it was held tliat the chairman might bring an action for a 
libel which attacked the mode in which the company carried on its business. 
JFilliams v. Beaumont, 10 Bing. 260 ; 3 M. & Scott, 705. 
A railway comjaany was held liable for transmitting a telegram to the 
effect that the plaintiff's liank had stopped payment. 

Wldtfield <£ others v. South Eastern Railway Co., E. B. & E. 115; 
27 L. J. Q. B. 229 ; 4 Jur. N. S. 688. 



11. Other Joint Plaintifs. 

" All persons may be joined as plaintiffs in wliom the 
right to any relief claimed is alleged to exist, whether 
jointly, severally, or in the alternative. And judgment 
may be given for such one or more of the plaintiffs as 
may be found to be entitled to relief, for such relief as 
he or they may be entitled to, without any amendment. 
But the defendant, though unsuccessful, sliall be entitled 
to his costs occasioned by so joining any person or 
persons wlio shall not be found entitled to relief, unless 
the Court in disposing of the costs of the action shall 



370 THE LAW OF PERSONS. 

otherwise direct." Order XYI., r. 1. Cf. C. L. P. Act, 
1860, s. 19. 

Ey vii'tuc of this rule, an action of libel or slander 
may now be brought by two or more persons jointly, 
although they are not in partnership or otherwise 
jointly interested, Barrait y. Collins, 10 Moo. 451, 
must be considered overruled. The damages in such 
an action ought to be claimed and assessed separately ; 
but if they be assessed jointly, and the plaintiffs be 
content with such a verdict, the defendant cannot avail 
himself of the defect. {BocAh and others v. Briscoe, 2 
Q. B. D. 496; 25 W. E. 838.) 

The defendant may counter-claim separately against 
such joint plaintiffs, if the counter-claims can be con- 
veniently disposed of in the same action with the 
plaintiff's claim. {^Manchester, Sfc, Ry. Co. and L. 6f N. 
W. Rfj. Co. V. Brooks, 2 Ex. D. 243 ; 46 L. J. Ex. 244 ; 
25 W. E. 413 ; 36 L. T. 103.) 

Illudrations. 

A charity iiuar Wisljeacli was managed by a body of trustees, eight in 
number. A libellous letter was published in the JFisheach Chronicle, m\- 
puting to the trustees misconduct in the management of the funds of the 
charity. The eight trustees sued the proprietor of the paper in one joint 
action for the libel. Held, that they were empowered so to do by 
Order XVI. r. 1 ; although before the Judicature Act, it would never have 
been allowed. The jury having returned a single verdict for the plaintiffs, 
damages 40s., the Court of Appeal refused, on the motion of the defendant, 
to disturb the verdict. 

Booth & others v. Briscoe, 2 Q. B. D. 496 ; 2o W. R. 838. 
Two co-proprietors of a newspaper may sue jointly for a libel on their 
paper without proving special damage ; and the jury may find the damages 
generally. 

Eussell and another v. Webster, 23 W. E. 59. 



12. Joint Defendants. 

"All persons may be joined as defendants against 
whom the right to any relief is alleged to exist, 



JOINT DEFENDANTS. 371 

Ayhctlicr jointly, severally, or in the alternative. And 
judgment may be given against such one or more of 
the defendants as may be found to be liable, according 
to theii' respective liabilities, without any amendment." 
Order XYI., r. 3. 

" Where in any action, whether founded upon con- 
tract or otherwise, the plaintiff is in doubt as to the 
person from whom he is entitled to redress, he may 
join two or more defendants, to the intent that in such 
action the question as to which, if au}^, of the defen- 
dants is liable, and to what extent, may be determined 
as between all parties to the action." Order XYI., 
r. 6. Though here, of com-se, the plaintiff will have 
to pay the costs of the defendant who proves not liable, 
unless such defendant has colluded with the other de- 
fendant found to be liable, or has otherwise been guilty 
of misconduct. 

" It shall not be necessary that every defendant to 
any action shall be interested as to all the relief thereby 
prayed for, or as to every cause of action included 
therein; but the Court or a Judge may make such 
order as may appear just to prevent any defendant 
from being embarrassed or put to expense by being 
required to attend any proceedings in such action in 
which he may have no interest." Order XYI., r. 4. 

Under these rules a joint action can now be main- 
tained against two or more persons for slander. For- 
merly this was impossible. ( Chamherlaln v. White^ Cro. 
Jac. G47 ; s. c. 8uh nomine Chambcrlainc v. WilhnorCi 
Palm. 313.) Even if husband and wife uttered similar 
words simultaneously, there were two separate publi- 
cations, and an action had to be brought against the 
husband alone for what he said, against both husband 
and wife for her words. (^Burcher v. Orchard et iix. 
(1C52), Style, 3-19, antc.^ p. 351 ; Hwlihbi et ux. v. 

E r. 2 



372 THE LAW OF PERSONS. 

Vincent et ux. (17G4), 2 Wils. 227; and in America, 
Tait V. Ciilhertson, 57 Barb. 9.) But with libel it was 
different ; the publication of a libel might well be the 
joint act of two or more persons, who might in snch 
a case be sned either jointly or separately at the elec- 
tion of the plaintiff. Thns, if a hnsband and wife 
jointly publish a libel, they might always have been 
jointly sued. [Catterall v. Kenjjon, o Q. B. 310; Keij- 
worth Y. Ilill, 3 B. & Aid. G8o.) If, however, plaintiff 
prefers to sue only one defendant when he might have 
sned others also, the one defendant sued cannot recover 
any share of damages or costs from the others, who 
might have been, but are not, sued. (Colburn v. Pat- 
more^ 1 C. M. & E. 73; 4 Tyr. G77; 3Ierryiveather v. 
Nixan, 8 T. E. 186 ; 2 Sm. L. C. 546 ; Moscati v. Laiv- 
son, 7 C. & P. 32.) 

Joint defendants may counter-claim jointly or sej)a- 
rately, or one may do so alone, against the plaintiffs 
jointly, or against one plaintiff separately, or against one 
j)laintiff and a third party. See Appendix C. to Judica- 
ture Act, 1875, Forms of Pleadings, jN"o. 14, Statement 
of Defence and Counter-claim in an action of Fore- 
closure. Such a counter-claim Avill, however be, of 
course, subject to the provisions of Order XIX., r. 3, 
and Order XXII. , r. 1), if it canuot be conveniently 
disposed of in the pending action. 

Illustration. 

The members of the coiimiittee of the Reform Union were hehl jointly 
liable for publishinij; fi report charging the plaintiff and otlicrs by name 
with liribery at the Eerwick election. 

JFilson V. Eced d; others, 2 F. & F. 149. 



CHAPTEE XIII. 

CRIMINAL LAW. 

Our attention hitherto has been chiefly directed to the 
civil action for libel or slander, whereby the person 
defamed seeks snch compensation as damages can afford 
for the injury done him by the defendant's words. But 
in all libels, and in some cases of spoken words, the 
State is also concerned, and interferes to punish the 
defendant as an offender against the criminal law. The 
evil doue by some libels is so extensive, the cxam23le 
set so pernicious, that it is desirable that they should 
be repressed for the public good. Slanders do less 
mischief as a rule, are not permanent, and are more 
easily forgotten ; their evil influence is not so widely 
diffused. As a rule, therefore, no sj)oken words are 
treated as a crime. Another reason often assigned for 
the interference of the State is, that libels conduce to a 
breach of the peace ; but that reason would, I think, 
apply with equal, if not greater force, to slanders. 

Criminal proceedings for libel may 1)0 taken either at 
common law, or under certain statutes ; the remedy may 
be either by indictment or information ; though infor- 
mations arc only granted in urgent cases, Avherc the 
publication of the libel is likely to produce great public 
mischief nnd must therefoi'c be promptly siqjpressed. 

The fact that libel is a crime as avcII as a tort, produces other 



374 CRIMINAL LAW. 

consequences in law wbicli it may be well to briefly notice here, 
though they are not strictly within the scope of the present 
treatise. 

No action can be maintained for the price of libellous pictures 
[Fores v. Jolvnes, 4 Esp. 97), or for their value, if destroyed by 
the person ridiculed [Du Bost v. Beresford, 2 Camp. 511). A 
printer cannot recover for printing a libel. {Poplett v. Stock- 
dak', Ry. .t M. 337; Bidl v. Chapman, 8 Ex. 104.) If a 
printer undertakes to jDrint a book for a certain price, and 
discovers as the work proceeds that the matter is defamatory, 
he may decline to continue the work, and can recover for the 
part of the work which is not defamatory in an action for work 
and labour done and materials jDrovided, the special contract 
notwithstanding. {Clay v. Yates, 1 H. & N. 73 ; 25 L. J. Ex. 
237; 4 W. R. 557; 27 L. T. (Old S.) 126.) Nor can an 
action be maintained for breach of a contract to furnish manu- 
script of defamatory matter {Gcde v. Leckie, 2 Stark. 107), or 
of a contract to let rooms to be used for the delivery of blas- 
phemous lectures [Coivan v. Milhourn, L. R. 2 Ex. 230 ; 36 
L. J. Ex. 124 ; 15 W. R. 750 ; 16 L. T. 290), or for pirating a 
libellous book {Stockdale v. Omvhyn, 5 B. & C. 173 ; 7 D. & R. 
625 ; 2 C. & P. 103). There is no copyright in any libellous 
or immoral book, or picture. A Court of Equity will not 
interfere in one way or another. It will not grant an injunction 
to restrain a piracy of an illegal ])ook or picture, nor decree an 
account of the profits made thereby. (Per Lord Eldon, in 
Walcot V. Walker, 7 Ves. 1 ; in Soutliey v. Shericood, 2 ]Mer. 
435, and in Lawrence v. Smith, Jacob, 471.) 

No contract will be imfiplied to indemnify a party against the 
consequences of an illegal act, such as the publication of a libel. 
{Shackell v. Easier, 3 Sc. 59 ; 2 Ring. N. C. 634.) And semhle 
the proprietor of a newsiDaper convicted and fined for the 
publication of a libel which Avas inserted in his paper without 
his knowledge or consent by the editor, has no right of action 
against the editor for the damages sustained through such con- 
viction. (Colburii v. Fatmore, 1 C. M. & R. 73 ; 4 Tyr. 677.) 
Even an exjjress promise to indemnify another if he will publish 
a libel is void (Arnold v. Clifford, 2 Sumner, 238) ; for it is 
a promise on an illegal executory consideration, an incitement 
to do an illegal act. But it has been decided in America that 



INDICTMENT. 375 

an express promise to indemnify another against the con- 
sequences of an illegal act already done is binding, {(jriffiths 
V, Eardenburgli, 41 N. Y. 4G9 ; Hoive v. Buffalo & Erie 
Rail. Co., 38 Barl)our (N. Y.) 124.) 



I. Criminal Remedy hj Indictment. 

It is a misdemeanour at common law, punishable on 
indictment with fine and imprisonment, to speak any- 
blasphemous, obscene, or seditious words in the hearing 
of others. A fortiori.^ it is such misdemeanour to write 
and publish blasphemous, obscene, or seditious words. 

It is a misdemeanour at common law, punishable on 
indictment with fine and imprisonment, to wiite and 
publish defamatory words of any living person ; or 
exhibit any picture or effigy defamatory of him. 

It is not a crime merely to speak such words, however 
maliciously. 

Whatever words would be deemed defamatory of a 
living person in any civil action mil be held a libel 
on the trial of an indictment. All the rules laid down 
in Chapters II., III., VIII., IX., as to Bona Fide Com- 
ment, Construction and Certainty, Privilege, and Malice, 
apply equally to civil and criminal proceedings. 

But a libel on a thing is no crime ; and Avherever no 
action would lie without proof of special damage, clearly 
no indictment can be preferred. 

It will be an aggravation of the offence, if the person 
libelled be a foreign prince, statesman or ambassador ; 
for such a libel would embarrass the government, and 
might disturb the friendly relations between England 
and that foreign country. See post, p. 383. 

It is a misdemeanour at common law, punishable on 
indictment Avith fine and imprisonment, to write and 
publish defamatory words of any person deceased ; 



376 CRIMINAL LAW. 

provided it be alleged and proved that this was done 
with intent to bring contempt and scandal on his family 
and relations and provoke them to a breach of the j)eacc ; 
Hawkins, P. C. i. 58 ; 5 Eep. 125« ; 7?. v. Topham, 4 
T. E. 129. 

It will also be such misdemeanour to libel any sect, 
company or class of men, Avithont mentioning any person 
in particular ; provided it be alleged and proved that 
such libel tends to excite the hatred of the peoj^le 
against all belonging to such sect or class, and conduces 
to a breach of the peace. (//. v. Gathcrcolc^ 2 Lewin, 
C. C. 254.) 

Such intention may sufficiently ajijDcar from the words 
of the libel itself, or it may be proved by the conse- 
quences that have followed from its publication. 

The criniiual remedy for libel, as it is the earlier, so it is the 
more extensive remedy ; a libel may be indictable, though it be 
not actionable. Thus in neither of the above cases woukl an 
action lie, for want of a proper plaintiff. And see R. v. Darby, 
:3 Mod. 139. 

Illusfrations. 

Liljel complained of : " On Saturday evening died of tlie sraall-pox at 
Lis house in Grosvenor Square, Sir Charles Gaunter Nicoll, Knight of the 
Llost Honourable Order of the Bath, and representative in ParHament for 

the town of Peterborough He could not lie called a friend to his 

countiy, for he changed his opinions for a red ribbon, and voted for that 
pernicious object, the excise." It was alleged that this passage was pub- 
lished with intent to vilify, blacken and defome the memory of the said 
Sir Charles, and to stir up the hatred and evil will of the people against 
the family and posterity of the said Sir Charles. An information was granted. 
II V. Critchley, (1734) 4 T. R. 129, n. 

But an indictment which alleged that a libel on the late Earl Cowjier 
had l)een i^ubhshed with intent to disgrace and vilify his memory, reputa- 
tion, and character, but did not go on to aver any intent to create ill blood 
or throw scandal on the children and family of Earl Cowper, or to provoke 
them to a breach of the peace, was held bad, after a verdict of guilty, and 
judgment arrested. 

H. V. Tophaw, 4 T. R. 12G. 



SPECIAL INTENT. 377 

And, a fortiori, to discuss tlie characters of deceased statesmen and noble- 
men, as a matter of history, is no crime. 

Per Lord Kenyon, C.J., ih. 129. 
But if in discussing the character and policy of William III. and George I., 
discredit is thrown on the character and administration of the present king 
(George II.), with intent to spread dissatisfaction among his subjects, the 
publication is a seditious libel. 

R. V. Dr. Shehbeare, (1758), cited in Lord Mansfield's judgment in 
Pi. V. Dean of St. Asaph, 3 T. R. 430, n. 
The defendant published a sensational account of a cruel murder com- 
mitted by certain Jews said to have lately arrived from Portugal, and then 
living near Broad Street. They were said to liave burnt a woman and a 
new-born baby, because its father was a Christian. Certain Jews who 
had arrived from Portugal, and who then liveel in Broad Street, w-ere 
attacked by the mob, barbarously treated, and their lives endangered. A 
criminal information was granted, although it was objected that it did not 
appear j^recisely who were the persons accused of the murder. 
R. V. Oshorn, Kel. 230 ; 2 Barnard. 138, 166. 
It is a crime to write of a Roman Catholic nunnery that it is a " brothel 
of prostitution ; " for this is an aspersion on the characters of the nuns in 
general, though none are singled out by name. 
R. V. Gathercole, 2 Lew. C. C. 254. 
A pamphlet reflecting on the government and asserting that its officers 
are corrupt, ignorant, and inca})able, will be a libel, and punishable as a 
crime; although no particular member of the government, and no individual 
officer, is mentioned or referred to. 

R. v. Tutchin, 14 Howell's St. Tr. 1095 ; 5 St. Tr. 527 ; Holt, 50 ; 
2 Lord Raym. 1061 ; Salk. 50 ; 6 Mod. 268. 
A notice was posted in church calling attention to certain abuses per- 
mitted by " the trustees " of Lambeth workhouse ; an information was 
granted on behalf of the whole body of trustees [although the trustees 
could not before the Judicature Act have jointly sued for the libel, ante, 
p. 370]. 

R. V. Griffin, 1 Sess. Cas. 257. 
An information was granted for a libel commencing : — "Whereas an East 
India director has raised the price of green tea to an extravagant rate," 
although there was nothing to show which particular director was intended. 
R. V. Jenour, 7 ]\Iod. 400. 
But an indictment for a libel on "persons to the jurors unknown "is 
bad, even after verdict. 

R. V. Orme (vel Aime) d; Nutt, 1 Ld. Raym. 486 ; 3 Salk. 224. ' 

It is a misdemeanour at common law to utter words 
which amount to a direct challenge to fight a duel, or 
to utter insulting words with the intention of provoking 
another to send a eliallenge. (//. v. PhlUiyps^ East, 



378 CRIMINAL LAW. 

4G4, and note on p. 470.) A fortiori^ it is a misdemeanom- 
to Avritc a cliallcngc or to conscionsly deliver a ^viitten 
challenge. And indeed all words wliicli amonnt to a 
solicitation to cunnnit a crime, whether spoken or ^mtten, 
are indictable, Avhether the person solicited commit the 
crime or not. [R. y. Higghis^ 2 East, 5.) 

It is also said to be a misdemeanour to fabricate and publish 
false news in writing (Dig. L. L. 23), or to endeavour, by spread- 
ing false rumours, to raise or loAver the price of food or merchan- 
dise. (See R. V. Waddmrjton (1800), 1 East, 143.) According 
to Scroggs, J., it is a misdemeanour to publish any news at all, 
though true and harmless. (See 11 Hargrave's St. Tr. 322.) 
Wlicre eight persons combined to raise the price of Govern- 
ment stocks on Feby. 21st, 1814, hy spreadinga false rumour 
of the death of Napoleon Buonaparte, they were indicted and 
con'^-icted of a conspiracy, for their common purpose was illegal. 
{R. V. De Bercnger, 3 M. & S. 67.) But this is scarcely an 
authority for holding that the merely spreading a false rumour 
is in itself indictable. 

In all the above cases of misdemeanom' at connnon 
law, the defendant may be fined or imprisoned, or both ; 
bnt he cannot be sentenced to hard labonr. He may 
also be reqnired to find snreties to keep the peace and 
to be of good behaviom- for any length of time. A 
married woman conld not, before the Married Women's 
Property Act, be fined ; bnt she conld be reqnii-ed to 
find sniTties, though she conld not enter into recog- 
nizances herself. 

Kone of the above offences can be tried at Quarter 
Sessions. 

Certain statutes have been passed in aid of the common 
law : — 

By the 6 & 7 Vict. c. 9G, s. 3, it is